•' 


I 


'P    V  i 


A  TREATISE 


ON 


Appellate  Procedure 


AND 


Trial  Practice  Incident  to  Appeals 


BY  BYRON  K.  ELLIOTT 

ii' 
AND 

.      WILLIAM  F.  ELLIOTT, 

AUTHORS  OF  "THE  WORK  OF  THE  ADVOCATE"  AND  "A  TREA- 
TISE ON  THE  LAW  OF  ROADS  AND  STREETS." 


INDIANAPOLIS: 

THE  BOWEN-MERRILL  COMPANY 

i  802. 


T 

£92/ 


Entered  according  to  the  Act  of  Congress  in  the  year  1892,  by 

The  Bowen-Merrill  Company, 
In  the  Office  of  the  Librarian  of  Congress  at  Washington,  D.  C 


CARLON   •!    HOLLBNBBCK,  EI.KrTr.OTYPED   BY 

PBI1  D    BINDEJ  INDIAN  Aim. I-    ELECTROTYPE  FOUNDRY, 

INIil  •  INDIANAPOLIS,    IND. 

(ii) 


PREFACE. 


There  seems  to  be  a  sort  of  neutral  ground  between  appel- 
late procedure  and  trial  court  practice  which  authors  do  not 
permanently  occupy,  although  they  do  transiently  enter  upon 
it,  so  that  many  matters  of  procedure  lying  within  this  neutral 
strip  are  not  much  considered,  and,  indeed,  are  not  often 
noticed.  It  has  seemed  to  us  that  appellate  procedure  can  not 
be  properly  treated,  nor  well  understood,  without  combining 
with  it  such  matters  of  trial  court  practice  as  are  incident  to 
appeals.  A  separation  is,  we  venture  to  say,  practically  im- 
possible, inasmuch  as  the  entire  groundwork  is  laid  in  the  trial 
court.  In  truth,  the  appeal  is  little  else  than  a  continuation 
of  the  same  cause,  although  the  cause  is  carried  to  a  different 
forum.  Acting  upon  the  theory  indicated,  we  have  treated 
procedure  on  appeal  and  appendant  or  incidental  matters  of 
trial  practice  as  blended  in  one  system.  Our  effort  has  been 
to  make  a  practical  treatise  that  will  be  of  every-day  use,  and 
one  that  will,  if  it  does  nothing  more,  at  least  supply  hints  and 
point  the  way  to  authorities  which  will  enable  the  lawyer  to 
find  what  he  needs  in  the  cases  he  is  called  upon  to  prepare 
for  appeal  and  to  conduct  in  the  appellate  tribunals. 

Byron  K.  Elliott. 

William  F.  Elliott. 
Indianapolis ,  May  i,  1892. 

(iii) 


TABLE  OF  CONTENTS. 


PART   I. 

APPELLATE  TRIBUNALS,  JURISDICTION   AND  PRACTICE. 


$  i. 


CHAPTER    I. 


APPELLATE    TRIBUNALS. 


Judicial  power — Definition. 

Rule  where  constitution  defines 
the  jurisdiction. 

Only  judicial  duties  can  be  im- 
posed on  courts. 

Courts  not  required  to  give  opin- 
ions to  the  legislature. 

Where  the  ultimate  superior  ju- 
risdiction is  vested. 


§  6.  Inherent  powers  of  constitutional 
courts. 

7.  Power  to  frame  rules. 

8.  Where  judicial  power  resides. 

9.  Amplifying  jurisdiction. 

10.  Influence  of  the  common  law. 

11.  Supplying  statutory  omissions 


CHAPTER    II. 

APPELLATE    JURISDICTION. 


Jurisdiction — Definition.  §  19 

Consent  can  not  confer  jurisdic- 
tion of  the  subject.  20. 

Fictitious  cases.  21. 

Appeal  defined. 

Appellate  jurisdiction  defined.  22. 

Appellate  jurisdiction  one  of  re-         23. 
view. 
18.   Jurisdiction  for  one  purpose  re-         24. 
tained  for  all. 


Statutory  mode  of  review  ex- 
clusive. 

Incidents  of  appellate  jurisdiction. 

Power  of  appellate  tribunals  to 
frame  judgments. 

Grant  of  appellate  jurisdiction. 

Determination  of  the  question  of 
the  right  of  appeal. 

Blending  of  legal  and  equitable 
jurisdiction. 


CHAPTER    III. 


THE    SUPREME    COURT. 


§  25.   The  rank  of  the  Supreme  Court. 

26.  The  repository  of  appellate  juris- 

diction. 

27.  Can   not   be   transformed   into  a 

nisi pritis  court. 


§  2S.    Mode  of  procedure. 

29.  Trial  of  questions  of  fact. 

30.  No  right  to  trial  by  jury  on  ap- 

peal. 

31.  Territorial  jurisdiction. 


(v) 


TABLE  OF  CONTEN  rS. 


3i- 


37- 


•  itutional  questions. 
II  (i  w    constitutional    qui 

musl  appear. 
Statutory  jurisdiction. 
Classes  of  cases  taken  from  the 

jurisdiction    of    the    Supreme 

Court. 
Incidents  of  a  class  go  with  it. 
Equity  cases. 
What    arc    considered    equity 

cases 


§  30  ure  of  liens  on  property. 

!«..    Title  to  land — Cases  involving. 
.|  1.    Prosecutions  for  felonj  . 
42.    Actions  to  recover  statutory  pen- 
alties. 
4.3.    Municipal  ordinances. 

44.  Where    the    principal    appellate 

jurisdiction  is  vested. 

45.  Inherent  powers. 

(.6.    Opinions — Constitutional     re- 
quirements. 


CHAPTER   IV. 


THE    APPELLATE    COl'RT. 


48. 
50. 

51- 

s-- 

53- 

54- 

55 
56 

57 
58 

60 


Jurisdictional  clause  of  the  act 
creating  the  Appellate  Court 

Entire  case  goes  to  one  court. 

Appellate  Court  has  no  jurisdic- 
tion of  constitutional  questions. 

No  definite  system  of  classifica- 
tion adopted. 
Actions  originating  before  a  jus- 
tice of  the  peace. 

Actions  involving  title  to  real 
estate. 

Amount  in  controversy  before 
justice  of  the  peace  determines 
jurisdiction. 

Amount  in  controversy  in  trial 
court — General  rule. 

Amount — Exceptional  cases. 

Jurisdiction  as  dependent  upon 
amount. 

Mi  mey  reci  >y  eries  only. 

Effect  of  the  limiting  words  of 
the  statute. 

Determination  of  the  amount  in 
i  ontroversy. 

Effecl  of  judgment  in  the  I  rial 
court  upon  the  question  of  the 
amount  in  controversy. 


61.  Interest  and  costs  which  accrue 

subsequent  to  the  appeal. 

62.  Remittitur — Effect  on  question  of 

jurisdiction. 

63.  Connter-claim  as  affecting  juris- 

diction. 

64.  Counter-claim — Change    of   the 

character  of  case  by. 

65.  Actions  for  the  recovery  of  per- 

sonal property. 

66.  Value  of  property  in  controversy 

not  material. 

67.  Exceptional  cases  involving  title 

to  personal  property. 
6S.    Actions    between    landlord    and 
tenant. 

69.  Rule  where  title  is  put  in  issue. 

70.  Decedents'  estate  s — C  1  a  i  m  s 

against. 

71.  Rules  of  practice. 

72.  Supreme  Court  decisions  control. 

73.  Transfer  of  cases. 

74.  Disqualifications  of  one  judge — 

Jurisdiction  not  ousted. 


CHAPTER   V. 


wiiai     MAY    BE    APPEALED    FROM. 


v  75.    Appeal — Right  of. 

7''.    Appeal  is  part  of  the  remedy. 
77.    Appellate  Jurisdiction  conferred 

bv  law. 


§  7S.    Only  judicial    questions  consid- 
ered on  appeal. 
79.    Appeals  lie  from   judgments  or 
decrees  onlv. 


TABLE  OF  CONTENTS. 


<§So.    Appeals  lie  only  from  final  judg- 
ments— General  rule. 
Si.    What  is  a  final  judgment. 
Si.    Difference  between  intermediate 
decisions  and  final  judgments. 

83.  Final  judgment  disposes  of  entire 

case. 

84.  Object  and  scope  of  the  rule. 

85.  Requisites  of  a  final  judgment. 

86.  Distinct  actions. 

87.  Appeal  from  judgment  of  review. 
SS.    Order  setting  aside  execution. 
S9.    Removal  of  case  to  Federal  Court. 

90.  Material   issues  must   be   deter- 

mined. 

91.  Rights  of  all  parties  must  be  ad- 

judicated. 

92.  Judgment  may  be  final,  although 

an  order  may  be  required  for 
its  enforcement. 

93.  Decree  in   partition   proceeding. 

94.  Form  of  judgment  not  important. 

95.  Independent   issues  not  affecting 

all  parties. 

96.  Record   must    show    final  judg- 

ment. 


$  97- 


98. 

99. 


102. 

103. 
104. 
105. 
106. 
107. 
10S. 
109. 
no. 


Limitation  of  appeals  to  desig- 
nated classes  of  cases  controls 
jurisdiction 

Distinct  and  independent  claims. 

Appeal  of  part  of  a  cause — Ex- 
ceptional cases. 

Interlocutory  order  appointing  a 
receiver. 

Interlocutory  order  for  payment 
of  money. 

Order  directing  execution  of  a 
written  instrument. 

Order  requiring  delivery  of  prop- 
erty. 

Order  requiring  assignment  of 
instruments. 

Order  compelling  execution  of 
instrument  of  writing. 

Order  granting  or  denying  an 
injunction. 

Interlocutory  order  in  Habeas 
Corpus  proceedings. 

Effect  of  an  appeal  from  an  inter- 
locutory order. 

Mode  of  appealing  from  inter- 
locutory orders. 

Void  judgments — appeals  from. 


CHAPTER    VI. 

THE    TIME    WITHIN    WHICH    AN    APPEAL    MAY    BE    TAKEN. 


§   in.    Limitation  of  time   is  jurisdic-     § 
tional. 

Time  can  not  be  enlarged. 

Cases  regarded  as  exceptions — 
Peculiar  features  of. 

Time  not  extended  to  the  party 
in  fault. 

Diligence  exacted. 

Petition  for  leave  to  appeal  after 
the  expiration  of  the  time  lim- 
ited. 

Rule  where  the  delay  is  caused 
by  the  act  of  the  court. 

When  the  time  begins  to  run. 

Final  judgment  and  entry — 
Time  begins  to  run  from. 

Independent  actions. 

When  the  right  of  appeal  ma- 
tures. 


112. 

114. 

"5- 

116. 


:iS. 
119. 

120. 

121. 


122.  Computation  of  time — The  be- 

ginning. 

123.  Collateral  and  independent  mat- 

ters. 

124.  How  the  date  of  the  final  judg- 

ment is  ascertained. 

125.  Day    the   judgment   is   entered 

excluded. 

126.  The   meaning  of  the  words 

months  and  years. 

127.  Non-judicial  days. 

128.  The  appeal  must  be  fully  per- 

fected   within    the    time    pre- 
scribed. 

129.  Bar,  by  limitation,  of  part  of  the 

appellants. 

130.  Parties  under  disabilities. 


Vlll 


TABLE  OF  CONTENTS. 


$  '31- 

«34- 

'  js- 

■  [6 

'37- 
138. 

i39- 
1  i" 
141. 

142. 

«43- 
»44- 

M.v 

146. 

147. 

[48. 
149. 
150. 


'51 


CHAPTER    VI 
PAR  1  IES. 

Right  of  appeal  generally.  $  153. 

Only  parties  or  privies  can  ap- 
peal— General  rule.  154. 

Appealable  interest. 

Cases  in  which  there  is  no  ap-         155. 
pealable  interest. 

tantial  interest  requisite.  156. 

p1  ional  eases. 

Succession  —  Substitution.  157. 

Joint  parties. 

Co-parties  generally.  15S. 

Ne<  essarv  parties. 

Parties  to  the  record  not  always         159. 
parties  to  the  judgment. 

Persons  not  affected  by  the  ap-         160. 
peal  not  necessary  parties. 

Rule  requiring  necessary  parties         161. 
not  technical. 

Notice    to    co-parties   jurisdic-  162. 

tional. 

Failure    to    give    notice    to    co-  163. 

parties — Waiver  of  objection. 

Waiver  of  notice.  164. 

Successful  party  can  not  prose- 
cute an  appeal.  165. 

Actual  controversy  must  exist. 

Suit  for  review  cuts  off  appeal.  166. 

Waiver  and  estoppel  by  accept-  167. 

ing   benefit  of  judgment   ap- 
pealed from.  168. 

Exceptions  to  the  general  rule. 

Payment    by    defendanl    not   a        169. 
waiver  nor  an  estoppel. 


Against  whom  an  appeal  may 
be  prosecuted. 

Appellees —  Who  should  be  — 
General  rules. 

Persons  united  in  interest  — 
Rights  of. 

How  persons  originally  co-par- 
ties may  become  adversaries. 

Termination  or  change  of  inter- 
est—Effect of. 

Influence  of  the  chancery  ele- 
ment of  code  procedure. 

Relation  of  parties  in  trial  court 
generally  continues  on  appeal. 

A  p  pealable  interest — H  o  w 
shown. 

Effect  of  change  of  the  positions 
of  parties. 

Within  what  time  parties  must 
be  brought  in. 

Effect  of  the  appeal  upon  co- 
parties  who  decline  to  join. 

Effect  of  notice  to  one  who  is  a 
party  but  not  a  co-party. 

Death  of  party  before  appeal — 
Effect  of. 

Death  of  party  after  the  appeal. 

Death  of  one  of  several  appel- 
lants— Effect  of. 

Appeals  by  and  against  repre- 
sentatives and  privies. 

Abatement  by  death. 


CHAPTER    VIII. 

PROCESS. 

§  170.    Notice — Object  of — Sufficiency.     §  17S 


171.  Test  of  sufficiency. 

1 7 j .  Written  notice  required. 

17;.  \  >ential  to  jurisdiction. 

171.  Time  where  there  is  no  fixed  rule 

must  be  reasonable. 

17;.    Notice  not   given  in  time  when 
ineffective — Waiver. 

[76     I'pon    whom    process    may    be 
served. 

1  77.    Service  on  the  attorney  of  record. 


Service  on  one  of  several  attor- 
neys. 

179.  Proof  of  service. 

180.  Filing   of  notice   and    proof  of 

service. 

151.  Service  of  notice  on  co-parties. 

152.  Objections  to  process. 

153.  Constructive  notice. 

154.  Proof  of  publication. 

Amendment  of  the  proof  of  no- 
tic.-. 


TABLE  OF  CONTENTS. 


IX 


CHAPTER  IX. 


THE    RECORD    AND     IK  AN  SCRIPT. 


1S6.    Appeals  are  tried  by  the  record.     § 
187.    Record    can    not    be    made    by 

agreement. 
iSS.    Remedying  detects  in  the  tran- 
script by  agreement. 

189.  The  difference  between  the  rec- 

ord and  the  transcript. 

190.  The  record  of  the  trial  court. 

191.  Direct  and  collateral  motions. 

192.  Adding   to  the  intrinsic  record 

by  special  order. 

193.  Special    cases  —  Default,    ques- 

tions upon  instructions. 

194.  The  record  on  appeal. 

195.  Transcript — Requisites  of. 


[96.  What  the  transcript  should  con- 
tain— Generally. 

1^7.  Independent  cases  can  not  be 
included  in  one  transcript. 

[98.    Matters  embraced  in  an  appeal. 

199.  Practice  where  transcript  con- 

tains improper  matter. 

200.  Directions  to  the    clerk — Pre- 

cipe. 
Jin  .    Authentication  of  the  transcript. 

202.  Constituent  parts  of  the  record 

as  prescribed  by  the  statute. 

203.  Authority  of  the  appellate  tri- 

bunal over  the  transcript. 

204.  Marginal  notes. 


CHAPTER 

CORRECTING    AND     AMENDING    THE 

205.  The  record  below  and  the  rec-     §  2 

ord  on  appeal. 

206.  Amendments  and  corrections  of 

the  trial  court  record.  2 

207.  Effect  of  an  amendment  of  the 

record  of  the  trial  court.  2 

20S.    Amendments  not  allowed  after  2 
the  decision  on  appeal. 

209.  Entries  nunc  pro  tunc.  2 

210.  The   application  to  correct  the  2 

trial  court  record. 

211.  By  whom    the  motion   may  be         2 

made. 

212.  Notice  of  the  motion. 

213.  Evidence  on  the  heaiing  of  the 

motion. 


X. 

RECORD    AND    TRANSCRIPT. 

14.  Appeal  from  the  ruling  on  ap- 

plication   for    nunc  pro    tunc 
entry. 

15.  Presenting    the    ruling   on    ap- 

peal. 

16.  Certiorari . 

17.  Duty  of  party  to  apply  for  cer- 

tiorari. 
iS.    Who  may  obtain  a  certiorari. 

19.  Time    of  making    the    applica- 

tion. 

20.  Requisites  of  an  application  for 

a  certiorari . 

21.  Notice  of  the  application. 

22.  Submitting  the  motion  for  hear- 


CHAPTER  XI. 


AGREED    CASE. 


§  223.    Agreed  cases — Jurisdiction. 

224.  Agreed  statement  of  facts  does 

not  make  an  agreed  case. 

225.  The  distinctive   features    of  an 

agreed  case. 

226.  No    presumptions,    indulged    in 

favor  of  the  judgment  of  the 
trial  court. 


227.    The  affidavit. 

22S.    Requisites  of  the  statement  of 
facts. 

229.  Office  of  the  statement  of  facts. 

230.  Effect  of  the  statement. 

231.  Mistake    in     the    statement    of 

fact-. 

232.  The  record. 


TABLE  I  >F  CON  II  NTS. 


CHAPTER   XII. 


*3« 
237 


RESERVED    '  ^ 

Object  of  the  statute.  §  239. 

The  case  must  be  made  up  un- 
der the  statute. 

Fying  the   court   of  the    in-  240. 

icnti< mi  to  res<  rve  questions.  241. 

( )nl  v  questions  of  law  can  be  re-        242. 
Berved. 

On  what  rulings  questions  may        243. 
be  1 '  sei -\  ed. 

Questions  of  fad  musl   be  ex-        244. 
eluded  by  the  record. 


Ol     LAW. 

Exceptions  to  the  rulings  upon 
which  questions  are  reserved 
sary. 

Bill  of  ex(  eptions  required. 

Office  of  the  bill  of  exceptions. 

A  motion  for  new  trial  neces- 
sary. 

Appeal  before  final  judgment 
not  authorized. 

Supersedeas. 


CHAPTER  XIII. 


MODES    "I      APPEAL    IN    CIVIL    ACTIONS. 
.    The  different  modes  of  appeal.        §  250.    Appeal  after  term 
240.    Appeals  in  term.  251. 

247.  Requisites  of  an  appeal  in  term.        252. 

248.  A  bond   essential  to  an  appeal         253. 

in   term. 
240.    Ineffectual  attempt  to  appeal  in 
term. 


Classes  of  appeals  after  term. 
Civil  actions — Definition. 
What   cases  are   appealable  as 
civil  actions. 


CHAPTER  XIV. 

APPEALS    IN     MATTERS    CONNECTED    WITH    DECEDENTS'    ESTATES. 

S54.     The    special    statute   does    not     §  261.   Time  for  appealing. 


create   an   entirely   independ- 
ent system. 
What  cases  are  governed  by  the 
statute   respecting  decedents' 

:tCS. 

Cases  held  not  to  be  within  the 
special  statute. 

Cases  within  the  statute. 

The  conflict  in  the  decisions. 

Construction  of  the  statute. 
260.    Effect  of  the  construction   sug- 
gested. 


256. 

257. 

258. 


262.  What  the  appellant  must  do  to 

perfect  the  appeal. 

263.  Extension  of  time. 

264.  Steps  essential  to  secure  an  ex- 

tension of  time. 

265.  Notice  of  the  application  for  an 

extension  of  time. 

266.  Briefs  on  the  application. 

267.  Bond  must  be  filed  within   the 

time  limited. 

268.  Intermediate  decisions  and  in- 

terlocutory orders. 


CHAPTER    XV. 

Mil    \I.S    IN    CRIMINAL    CASES. 


4  209.   Statutory  remedy  exclu 

270.  Appeal8  can  not  be  taken  under 

the  statute  providing  for  ap- 
peals in  civil  actions. 

271.  Classes  of  appi 


§  272.    Appeals  by  the  State. 

273.  When  an  appeal  will  not  lie  from 

a  denial  of  a  motion  in  arrest. 

27 4.  'The  State  can  present  only  ques- 

tions of  law. 


TABLE  OF  CONTENTS. 


XI 


4  275- 
276. 

277. 


27S. 

279. 
280. 
281. 
282. 
283. 

284. 

2S5. 
2S6. 


Preparation  of  the  record. 

Bill  of  exceptions — When  nec- 
essary. 

Exceptions  must  be  reserved — 
Motion  for  new  trial  not  re- 
quired. 

The  State  has  no  general  right 
of  appeal. 

How  questions  of  law  may  arise. 

What  the  record  must  show. 

Defective  record. 

The  initial  step — Notice. 

Notice  is  merely  one  step  to- 
wards perfecting  the  appeal. 

Time  within  which  the  State 
must  perfect  the  appeal. 

Time — Waiver. 

Appeal  by  defendant. 


§  2S7.    Defendants  given  a  general  right 

of  appeal — What  must  be  done 
to  perfect  an  appeal. 
2SS.    Appeal    by  one   of  several    de- 
fendants. 

289.  Waiver  of  the  right  of  appeal. 

290.  Waiver  of  errors. 

291.  Presumptions. 

292.  Record    must    show  prejudicial 

error. 

293.  Objections  must  be  made  in  the 

trial  court. 

294.  The  record. 

2915.    Bill  of  exceptions — When  nec- 
essary. 

296.  The  bill  of  exceptions — Matters 

of  practice. 

297.  Appeal  does  not  vacate  the  judg- 

ment. 

295.  Effect  of  an  appeal  by  the  State. 


CHAPTER   XVI. 


THE    ASSIGNMENT    OF    ERRORS. 


§  299. 
300. 
301. 
302. 

3°3- 
3°4- 

3°5- 


306. 

3°7- 
308. 


3°9' 
310 


The  office  and  form  of  the  as- 
signment of  errors. 
The  assignment  of  errors  is  the 

complaint  of  the  appellee. 
The  assignment  of  errors  pre- 
sents questions  of  law. 
Leave  to   amend  may  precede 

the  assignment  of  errors. 
Assignment  of  errors  essential 

to  complete  jurisdiction. 
Relief   where    failure  to   assign 
errors  is  caused   by    accident 
or  fraud. 
Preliminary  steps  may  precede 
the  assignment  of  error  in  ex- 
ceptional cases. 
Specifications  of  error. 
Statutory  provisions. 
Concerning  the  rule  that  the  as- 
signment shall  be  specific. 
Each  specification  must  be  com- 
plete in  itself. 
Appeals  from  the  Marion  Supe- 
rior Court. 


§  311 


312 

3J3 
3X4 


By  whom  errors  must  be  as- 
signed. 

Intervenors. 

Incidental  issues. 

Only  injured  parties  can  assign 
error. 

315.  Parties  privies  may  assign  error. 

316.  The  assignment  can  not  contra- 

dict the  record. 

317.  A  favorable   ruling  can   not  be 

assigned  as  error. 
31S.   Joint  assignments. 

319.  Exception  to  the  general  rule. 

320.  Curing  defects   in   the   assign- 

ment. 

321.  Correcting    the    assignment    ot 

errors  as  to  parties. 
Naming  parties. 
Exceptions  to  the  rule  requiring 

names  of  parties. 
Groundwork  of  the  assignment. 
Distinction  between  resembling 

classes  of  ease-. 


322. 

323- 

3-4- 
3^5- 


TABLE  OF  CO  vTlA  is. 


527. 
330- 


33?- 
333- 
334- 
335- 

337- 

340- 


ifications  of  error  defective     §  341. 
becau  neral. 

ling  of  the  rule  requiring        342. 
ignments.  343- 

Errors  respecting  jurisdiction  of 

the  person.  344. 

Defective  trial  court  process.  345. 

Application  to  trial  court  where 
service  is  defecth  e. 
The    difference   between    cases        347. 

where  there  is   no  jurisdiction 

and  cases  where  the  notice  is        34S. 

1  five. 

Cases  where  is  no  service.  349. 

Writs  running  beyond  the  term. 
Judgments  by  default.  350. 

Failure  to  obey  a  rule  to  plead. 
Ruling6    on    pleadings — Gener-         351. 
ally. 

Rulings  on  demurrers.  352. 

Interrogatories  to  parties. 
Habeas  corpus  cases.  ^S3- 

Identifying    the    ruling   com- 
plained of. 


ions  to  the  mode  of  im- 
paneling the  jurv. 

Rulings  on  verdicts. 

Specifications  in  cases  of  rulings 
on  verdicts. 

Rulings  on  judgments. 

M 1  »de  of  objecting  to  judgn 

Original  objections  to  judg- 
ments. 

Causes  for  a  new  trial  not  as- 
signable as  error. 

Whal  1  nailers  are  not  assignable 
as  reasons  for  a  new  trial. 

What  should  be  made  independ- 
ent specifications  of  error. 

I  nd  e  pen  den  t  specifications — 
When  proper. 

Specifications  of  the  motion  for 
a  new  trial. 

Trial  where  issues  of  law  are 
undecided. 

Amendment  of  the  assignment 
of  errors. 


CHAPTER   XVII. 


APPEAL    IiOXDS. 


5  .354- 


353. 
359- 


Power  to  exact  a  bond.  §  367. 

Nature  of  appeal  bonds. 

'l'ii.'  bond  is  statutory.  368. 

Rule  where  there  is  no  jurisdic-  369. 
tion    of   the   matter  in    which 

the  bond  is  executed.  370. 

The  bond  is  aided  by  the  statute.  371. 

Construction  of  appeal  bonds —  372. 

( icneral  rule.  373. 

R<  1  overy  limited  by  the  penalty.  374. 
si  beyond  the  penalty. 

ibligation  of  the  bond.  375. 
Mi  ide  "f  executing  the  bond. 

1  el  -  ''id.  376. 
Right   of  appellee  to  require  a 

well  framed  and  properly  exe-  377. 

cuted  bond.  378. 
Authority  of  trial  court  to  fix 

the    penalty  and    approve    the  379. 
sureti 

the  1  irder  of  approval.  3S0. 


Demanding  a  new  bond — Prac- 
tice. 

Estoppel  of  the  sureties. 

By  whom    the   bond   should   be 
approved. 

Informal  or  irregular  approvals. 

Approval  may  be  implied. 

Effect  of  the  approval. 

Evidence  of  filing  and  approval. 

The  bond  as  essential  to  the  ef- 
fectiveness of  an  appeal. 

Bond  not  ordinarily  essential  to 
jurisdiction. 

Appearing  without  objecting — 
Waiver. 

Amending  defective  bonds. 

Motion    to    dismiss    because    of 
I  ive  bond. 

Promptness  required  in  asking 

leave  to  amend. 
Enforcement  of  the  bond. 


T  A  ISLE  OF  CONTEXTS. 


Xlll 


§  3S1.    What  will  release  sureties. 
3S2.    Surety's  right  of  subrogation. 


§  3S3.    Measure  of  recovery. 


CHAPTER   XVIII. 


STAY  OF  PROCEEDINGS  —  SUPERSEDEAS. 


384.    Bond  required  to  secure  stay  of 

proceedings. 
38^.    Effect  of  an  appeal  in  term. 

386.  Stay  by  order  of  appellate  tri- 

bunal. 

387.  Supersedeas — Definition. 

388.  Application  for  a  supersedeas — 

Brief. 

389.  Effect   of  a  supersedeas — Gen- 

erally. 

390.  Stay  obtained  by  one  of  several 

appellants — Effect  of. 

391.  Supersedeas  does  not   confer  a 

right  to  do  what  decree  for- 
bids. 

392.  Effect    of    a    supersedeas    upon 

self-executing  judgments. 


$  393 


Effect  of  a  supersedeas  where 
the  judgment  is  self-executing 
in  part. 

394.  Duration  of  the  stay  in  appeals 

from  final  judgments. 

395.  Duration  of  the  stay  in  appeals 

from  interlocutory  orders. 

396.  Sureties  on  a  supersedeas  bond. 

397.  No  liability  where  there   is  no 

injury,  and  no  promise  to  pay 
the  judgment. 
39S.   Trial    court    can   not  control  a 
supersedeas. 
Setting   aside    a   supersedeas  — 

Practice. 
Motions   to  dismiss    an   appeal 
and  motions  to  vacate  a  super- 
sedeas. 


399- 


400. 


CHAPTER  XIX. 


PLEADINGS    OF    THE    APPELLEE. 


§  401.    Demurrer  to  the  assignment  of 
errors. 

402.  Ill-assigned  errors  disregarded. 

403.  Classification    of  pleas    or    an- 

swers. 

404.  Joinder  in  error. 

40^.    The  common  joinder  admits  the 
record. 

406.  Waiver  by  common  joinder. 

407.  Special  pleas  or  answers. 

408.  What  must  be  specially  pleaded. 

409.  Election  of  remedies. 

410.  Presenting  matter  in  bar  by  mo- 

tion. 

411.  Verification  of  the  motion. 

412.  Notice  of  the  plea  or  motion. 

413.  Demurrer  to  the  special  plea. 

414.  Reply  to  the  special  plea. 

415.  Cross-errors. 


§  416.    Assignment   of  cross -errors — 
When  necessary. 

417.  Nature   of    the    assignment   of 

cross-errors. 

418.  Object    of    the    assignment   of 

cross-errors. 

419.  Effect  of  the  assignment  of 

cross-errors. 

420.  Groundwork  of  the  assignment 

of  cross-errors. 

421.  Transcript. 

422.  Notice  of  the   assignment  of 

cross-errors  not  required 
when  filed  within  the  time 
limited. 

423.  Time  within  which  cross-errors 

may  be  assigned. 

424.  Answer  to    the    assignment    of 

cross-errors  not  required. 


XIV 


TABLE  OF  CON  I  EN  is. 


§   1-5- 
1-7 

l-'w. 

431' 


$  438. 

439- 
440. 

441- 
44-- 
443- 

444- 

445- 

446. 

447- 
448. 


CHAPTER    XX 
SUBMISSION. 

Submission  by  agreement. 

Effect  of  a  submission  by 
ment. 

Rights  not  waived  by  an  agree- 
ment submitting  the  cause. 

Forced  submission. 

Submission  on  call. 

the  submission. 

Submission  of  appeals   in  term. 


§  432.  Nature  of  the  notice  required  in 
cases  where  the  appeal  is  in 
term. 

433.  Submission    in    cases    appealed 
upon  notice  under  act  of  1SS5. 

434.  Submission    upon   the   applica- 
tion of  the  appellee 

43  v    Notice  under  the  act  of  1SS5. 

436.  Objecting  to  submission. 

437.  Setting  aside  the  submission. 


CHAPTER    XXI 
BRIEFS    AND    ARGUMENTS. 


Briefs — Definition. 

General  frame  of  the  brief. 
Showing   the  manner   in  which 

the  questions  arise. 
'  ing  the  facts. 
Method  of  staling  the  facts. 
Correcting  erroneous  state 

ments  of 
Making  the  points. 
Showing  rulings  to  be  wrong. 
Statin-  propositions  of  law. 
Citing  authorities. 
Waiver  of  preliminary  motions 

by  filing  brief. 


§  449.    Time  within    which  the  appel- 
lant's brief  must  be  filed. 
Brief  on  cross-errors — Time  of 

filing. 
Appellee's  brief  on   the    appel- 
lant's assignment  of  errors. 
Extension  of  the  time  for  filing 

briefs. 
Oral  arguments. 
54.    Application  for  oral  arguments. 
4.55.    Limitation  of  oral  arguments. 
(.56.    Statement    of  propositions    for 

argument. 
457.    Interchange  of  points  for  argu- 
ment. 


45°  ■ 
45 '■ 

452. 

453- 


CHAPTER   XXII. 

THE    ORDER    OF    DOCKETING    AND    HEARING    APPEALS. 

§  464.   Cases  can  not  be  advanced   by 
agreement. 

465.  The  application  for  advancement. 

466.  What  must    precede  application. 

467.  Notice  of  the  application. 

468.  Hearing  the  motion   to  advance. 
1  Questions  for  decision  on  a  mo- 
tion to  advance. 


§  458.   Docketing  appeals. 

ptions  to  the  general  rule. 
the  transcripl  i 
ally  essentia]  to  jurisdiction. 
461.    Order  of  hearing. 

Authority  of  the  court  to  change 
the  order  of  hearing. 
463.    Advancement  of  cases. 


CHAPTER    XXIII. 
HAT    MAY    BE    FIRST    MADE    ON    APPEAL. 

§  470.   Objections  not  presented  to  the     $  471.    Objections  to  the  complaint. 


trial  court  not  considered  on 
appeal — General  rule. 


472.    Assailing    a   complaint   on    the 
assignment  of  errors. 


TABLE  OF  CONTEXTS. 


XV 


§  473 

474 
475 
476 

477 

47S 
479 


What  defects  are  fatal  upon  an     §  480. 
original  attack  on  appeal. 

One  good  paragraph  will   save  481. 

the  complaint.  4S2. 

Judgment   by    default  —  Requi- 
sites of  the  complaint.  483. 

Answer  can  not  be  attacked  for  4S4. 
the  first  time  on  appeal. 

Cross  -  complaint     or    counter-  485. 
claim. 

Requisites  of  a  counter-claim.  4S6. 

Reply.  487. 

488. 


The  doctrine  applicable  to  an- 
swers and  replies. 

The  reason  of  the  rule. 

Rendering  judgment  on  the 
pleadings. 

Set-off. 

The  rule  where  a  bad  answer  is 
proved. 

Effect  of  the  rule  respecting  the 
proving  of  a  bad  answer. 

Effect  of  proving  a  bad  answer. 

Anomalous  cases. 

Criminal  cases. 


CHAPTER     XXIV. 


HOLDING    PARTIES    TO    TRIAL    COURT    THEORIES. 


§  489.   The  cardinal  principle. 
490.    Adherence  to  theory. 
Illustrative  cases. 
Instances  of  the  application  of 

the  general  doctrine. 
The  rule  as  applied  to  cases  in- 
volving   constitutional    ques- 
tions. 
The  theory  as  outlined  by  the 

pleadings. 
Requiring     adherence     to     the 
opening  statement. 
496.   The  doctrine  of  election. 


491. 
492. 

493- 


494- 


495- 


497- 
49S. 

499- 
500. 


502. 


5°3- 


Limitations  of  the  rule. 

Exceptions  to  the  rule. 

The  rule  as  affecting  jurisdic- 
tional questions. 

Special  cases. 

Nature  of  jurisdictional  ques- 
tions. 

Original  objections  to  jurisdic- 
tion. 

Jurisdiction  of  the  subject  not 
the  same  thing  as  jurisdiction 
of  the  particular  case. 


CHAPTER    XXV. 

AUXILIARY    PROCEEDINGS. 


§  504.    Auxiliary   power    of    appellate     §  510     Statutory   provisions  —  Injunc- 


tribunals. 

505.  The   nature   of  auxiliary  juris- 

diction. 

506.  The  principal  classes  of  auxili- 

ary proceedings. 

507.  Appeal  must  be  pending  to  au- 

thorize the  exercise  of  the 
auxiliary  jurisdiction — Gene- 
ral rule. 

50S.  Exceptions  to  the  rule  requiring 
the  transcript  to  be  filed  before 
asking  assistance. 

509.    The  application  for  assistance. 


tions. 

511.  Statutory  provisions  —  Manda- 

mus and  prohibition. 

512.  Injunctions. 

513.  Injunctions — Matters  of  prac- 

tice. 

514.  Mandamus — Power  to  issue. 

515.  Mandamus — Cases  in   which    it 

will  not  issue. 

516.  Mandamus — Cases  in  which   it 

will  issue. 

517.  Mandamus — Matters  of  practice. 

518.  Prohibition. 


TABLE  I  »!    C(  INTEN  fS. 


CHAPTER    II. 


EXERCISE    "I     DISCRl    riONARY    POWER, 


Judicial  discretion — Definition.     §  609. 
I  >iscretionary  power. 

ipe  of  the  discretionary  610. 

power.  61 1 . 

600.    A  question  of  pure  discretion  is  612. 

not  a  question  of  law.  613. 

Got.    Absolute  and  limited  discretion.  614. 

602.    Review   of  rulings    professedly 

made  in  the  exercise  of  discre-  615. 

tionary  power.  616. 

;.    Abuse  of  discretion.  617. 

604.  Showing  an  abuse  of  discretion. 

605.  Refusal  to  exercise  a  discretion-  61S. 

arv  power.  619. 

606.  Time  to  plead.  620. 
C07.    Allowing  amendments  to  plead- 
in.;-.  621. 

60S.    Abuse  of  discretion  in  denying 

amendments.  622. 


Denying  negligent  parties  leave 
to  amend. 

Amendments  after  verdict. 

Failure  of  proof. 

Calling  a  jury. 

Impaneling  the  jury. 

Decisions  upon  the  qualifica- 
tions of  jurors. 

Mode  of  trial. 

Conduct  of  the  trial. 

Control  of  the  delivery  of  evi- 
dence. 

Examination  of  witnesses. 

Ordering  a  view. 

Compulsory  examination  of  the 
person. 

Discharge  of  the  jury  before 
verdict. 

Timeforfilinghillsof  exceptions. 


§  6:3. 

624. 
625. 

626. 


$  631 


633- 


CHAPTER    III. 


INVITED     ERROR, 


The  error  itself  as  distinguished 
from  matters  of  procedure  re- 
quired to  make  it  available. 

Making  wrong  rulings  available 
as  error. 

Conduct  of  the  parties  as  affect- 
in-  the  right  to  make  errors 
available. 

Procuring  an  erroneous  ruling. 


§  627.    Implied   invitation    to    rule  er- 
roneously. 
62S.    Opening  the  door  to  the  admis- 
sion of  incompetent  evidence. 

629.  Admission  of  incompetent  evi- 

dence— Effect  upon  the  party 
who  introduces  it. 

630.  The   doctrine  of  invited   error 

founded   on    the    principle  of 
estoppel. 


CHAPTER    IV. 


HARMLESS      ERROR. 


Difference  between  decisions  af- 
fe<  ting  primary  rights  and  de- 
cisions affecting  procedure. 

Error  without  prejudi<  e. 

Right  result  reached  by  wrong 
mode. 
634.    Limitations  of  the  rule  that  there 
is   no   available  error  where  a 
right  result  is  reached. 


§  635.    Uninfluential  error. 

636.  Nominal  damages  —  Failure  to 

assess. 

637.  Rulings  on  demurrer. 

63S.  Resorting  to  the  evidence  to 
avoid  the  effect  of  a  wrong 
ruling  upon  demurrer. 

639.  Rulings  on  motions  to  strike  out 
or  reject  pleadings. 


TABLE   OF  CONTENTS. 


XIX 


§  640.    Pleadings  defective  in  form. 

641.  Rulings    in    admitting  and   ex- 

cluding evidence. 

642.  Instructions — What  errors   are 

in  general  regarded  as  tin  in- 
fluential. 

643.  Verdict  clearly  right  on  the  ev- 

idence, erroneous  instructions 
harmless. 

644.  Instructions — Verbal  inaccura- 

cies. 

645.  Erroneous  instructions  are  gen- 

erally harmless  where  there  is 
a  special  verdict. 


§  646.  Equity  cases — General  instruc- 
tions unnecessary. 

647.    Incomplete  instructions. 

64S.  Instructions  —  Construction  of 
on  appeal. 

C>4<).  Erroneous  rulings  in  selecting 
and  impaneling  the  jury  often 
harmless. 

650.  Misconduct  of  jurors. 

651.  Special   interrogatories  to  jury 

— What  rulings  are  harmless, 
although  erroneous. 

652.  Erroneous    rulings    upon    ver- 

dicts   that    are    regarded    as 
harmless. 


CHAPTER    V. 


PREJUDICIAL 

§  653.    To  determine  whether  error  is     § 
prejudicial   the    entire  record 
must  be  examined. 

654.  Rulings  wherein  prejudicial  er- 

ror may  exist. 

655.  Mistaking  the  remedy. 

656.  Election  of  remedies  —  Waiver 

of  torts. 

657.  Ordinary  and  extraordinary 

remedies. 

658.  Consequences  of  mistaking  the 

remedy  —  Making    the    error 
available. 

659.  Parties   to   the  action  —  Neces- 

sary and  proper. 

660.  Necessary    parties — Illustrative 

cases. 

661.  A  criterion  for  determining  who 

are  necessary  parties. 

662.  Who  should  be  plaintiffs  and  who 

defendants — General  rule. 


663.  Joinder  of  parties. 

664.  A  right  of  action  must  exist  in 

all  who  join  in  a  complaint. 

665.  Pleadings — Motion  to  make  spe- 

cific. 

666.  Rulings  on  demurrer. 

667.  A  wrong  ruling  which  operates 

to  exclude  material  facts  is 
prejudicial. 

668.  Error  once  effectively  saved  is 

sufficient. 

669.  The' difference  between  overrul- 

ing and  sustaining  a  demurrer 
to  one  of  several  paragraphs 
of  a  pleading. 

670.  Rulings   in    admitting   and  ex- 

cluding evidence. 

671.  Conduct  of  the  trial. 

672.  Misconduct  of  parties  and  coun- 

sel. 

673.  Interrogatories  to  the  jury. 


CHAPTER  VI. 

WAIVER. 

$  674.    Available  error  does  not  exist  §  676.    A  party  does  not  waive  a  defect 

where    there    is    an    effective  or  irregularity  of  which  he  is 

waiver.  excusably  ignorant. 

675.   The  doctrine  of  waiver.  677.   Appearance — Effect  of. 


XX 


TABLE  OF  CONTEN  fS. 


§  678.    Special  or  qualified  appearance. 

679.  Waiver  ol'  objections  to  the 
remedy. 

6S0.  Waiving  objections  to  plead- 
ings. 

681 .  Failure  to  demur. 

682.  Failure   to   demand   a    decision 

upon  demurrer. 
,.    Waiver  of  objections  to  decis- 
ions on  demurrer. 
6S4.    Instances  of  the  waiver  of  pre- 
liminary objections. 
I     5.    Demurrer    to     the     evidence — 

Waiver  of  right  to  jury. 
686.    Introducing  evidence  after  de- 
murring— Effect  of. 


§  6S7.    Motion  for  direction  to  jury  to 
return  a   verdict    in    favor  of 
moving  party — Effect  of  sub- 
sequently  giving  evidence. 

6SS.  Waiver  of  objections  to  plead- 
ings by  demurring  to  the  evi- 
dence. 

6S9.  Effect  of  a  demurrer  upon  the 
right  to  make  rulings  upon  the 
evidence  available. 

690.  Waiver  as  affecting  the  mode  of 

trial. 

691.  Rulings  respecting  procedure  on 

the  trial — Illustrative  cases. 

692.  Rulings  on   the    trial — General 

doctrine. 


CHAPTER  VII 

CURING    ERROR. 

§  693.    Origin  and  nature  of  the  power     §  700. 
to  cure  error. 

694.  Limitations  of  the  power — Ex-         701. 

ceptional  cases. 

695.  Exercise  of  the  power  to  cure        702. 

errors.  703. 

696.  Asking  for  time  in  cases  where 

a  ruling  is  changed. 

697.  Rulings  made  during  the  forma-        704. 

tion  of  issues. 
69S.    Curing  error   in   the  admission 

of  evidence  by  supplementing        705. 

it   with   evidence    making   it        706. 

competent.  707. 

699.   Proving  the  same  facts  by  com- 
petent   testimony    sometimes        70S. 

obviates  the  error  in  admitting 

incompetent  evidence. 


Withdrawal  of  incompetent  ev- 
idence. 

Instructions  to  disregard  incom- 
petent evidence. 

Exceptional  cases. 

Effect  of  sustaining  a  motion 
to  strike  out  incompetent  tes- 
timonv. 

When  a  party  can  not  withdraw 
evidence  over  the  objection  of 
his  adversary. 

Curing  errors  in  instructions. 

Refusal  of  instructions. 

Subsequentlvadmittinge  vide  nee 
once  excluded. 

Miscellaneous  instances. 


CHAPTER   VIII. 


PR  ESUMPTIONS, 

■  presumptions — What     §  712. 
presumption  will  be  preferred. 

710.  Presumption  in  favor  of  the  pro- 

lings  of  the  trial  court. 

711.  Nature  of  the  presumption.  713. 


Record  susceptible  of  two  con- 
structions— That  which  sus- 
tains the  judgment  will  be 
preferred. 

Presumptions  will  not  prevail 
against  the  record. 


TABLE  OF  CONTEXTS. 


XXI 


§  714.    Court  and  judge. 

715.  Jurisdiction    of    subject  —  Pre- 

sumption of. 

716.  Exception  to  the  general  rule — 

Judgment  by  default. 

717.  Presumption   of  jurisdiction   is 

not  rebutted  by  the  silence  or 
incompleteness  of  the  record. 

71S.  Judgment  of  trial  court  is  pre- 
sumed to  be  properly  sup- 
ported. 

719.  Pleadings  —  Presumption  that 
judgment  is  within  and  found- 
ed on. 


§  720.    Presumption    that    rulings    on 
pleadings  were  correct. 

721.  Rulings  on  the  evidence — Pre- 

sumptions respecting. 

722.  Instruction  s — Presumptions 

concerning. 

723.  Juries     and     jurors — Presump- 

tions concerning. 

724.  Verdicts — Presumptions  in  aid 

of. 

725.  Miscellaneous  instances. 


CHAPTER    IX. 


$  726. 
727- 
72S. 
729. 
73°- 


732- 
733- 
734- 

735- 
736. 


73S. 


REQUESTS    AND     OFFERS. 

No  ruling  or  no  request,  no  error.     §  739. 

Refusal  to  rule. 

Implied  requests.  740. 

Time  for  making  request. 

A  party  basing  a  right  on  a  re-         741. 

quest  must  himself  make  it. 
Request    must  be    affirmatively         742. 

shown.  743. 

Request  for  a  special  finding.  744. 

Request  for  written  instructions. 
Request  for  an  inspection  of  the         745. 

instructions  of  the  court. 
Requesting  special  instructions.         746. 
Requests  where  instructions  are 

correct  as  far  as  they  go.  747. 

Request   for  the  submission  of 

interrogatories  to  the  jury.  74S. 

Request  for  a  special  verdict.  749. 


The  practice  in  requesting  spe- 
cial verdicts. 

Request  for  inspection  and  pro- 
duction of  documents. 

When  notice  to  produce  not  re- 
quired. 

Offers — General  doctrine. 

Offers  of  oral  testimony. 

Showing  materiality  and  rele- 
vancy. 

Effect  of  mingling  competent 
with  incompetent  evidence. 

Offer  unaccompanied  by  inter- 
rogatory unavailing. 

Offer  not  required  on  cross-ex- 
amination. 

Offer  of  documentary  evidence. 

Repeating  offers. 


CHAPTER    X. 

MOTIONS    FOR   JUDGMENT    AND    INCIDENTAL    MATTERS. 

§  755.    Distinct  causes  of  action. 


750.  Introductory. 

751.  Motions   for   judgment    on   the 

pleadings. 

752.  Special  interrogatories  to  jury — 

Requesting  judgment  on  the 
answers. 

753.  Special     verdicts — Motions    for 

judgment  on. 

754.  Effect  of  moving  for  judgment. 


756.  Motion  essential  to  save  ques- 

tions upon  special  verdicts. 

757.  Special  finding — Characteristics 

and  incidents. 
75S.  The  motion  for  a  venire  de  novo 

— The  general  doctrine. 
759.    Venire   de    novo — The   Indiana 

rule. 


XXII 


TABLE  OF  CONTENTS. 


§  760.   The  motion  for  a  venire  de  novo 
as  applied  to  a  special  finding. 

761.  Office  of  the  motion  for  a  venire 

762.  Time  of  filing  the  motion. 
[.    Requisites  of  the  motion. 

764.  S  p  e  c  ial    finding — Motion    to 

strike  out. 

765.  Special  finding — Particular  facts 

outside  of  the  issues. 


§  766.  The  difference  between  cases 
where  only  particular  facts 
are  outside  of  the  issues  and 
cases  where  the  whole  finding 
is  outside. 

767.  Finding  whollj'   outside  of  the 

issues. 

768.  Practice    where    the    judgment 

does  not  follow  the  finding  or 
verdict. 


CHAPTER    XI. 

OBJECTIONS. 


§    769- 
770. 

77»- 

77-- 
773- 
774- 

775- 


$  7§3- 

7S4. 

7S.S- 
786. 

787. 

788. 
789. 


The  difference  between  objec- 
tions and  exceptions. 

Objections  must  be  specific. 

The  grounds  of  the  objection 
must  appear  of  record. 

Objections  must  be  seasonably 
interposed. 

The  objection  must  come  from 
the  proper  party. 

Practice  where  evidence  is  com- 
petent against  one  party  but 
not  against  other  parties. 

Grounds  of  objection  should  all 
be  stated. 

CHAPTER    XII. 


§  776.   Jurisdictional  objections. 

777.  Objections  to  pleadings. 

778.  Objecting  to  jurors. 

779.  Specifying  objections  to  evi- 
dence. 

780.  Separating  competent  from  in- 
competent evidenee. 

7S1.  Practice  where  the  question  is 
proper  but  the  answer  incom- 
petent. 

782.  Specification  of  objections  to 
conduct  of  parties  and  counsel. 


EXCEPTIONS. 

Nature  and  office  of  an  excep-     §  790 


tion. 

When  an  exception  is  required. 

Time  of  taking  exceptions. 

The  exception  must  immediate- 
ly follow  the  decision. 

The  exception  must  be  addressed 
to  the  specific  ruling. 

Joint  exceptions. 

Exceptions  can  not  be  taken  to 
several  rulings  in  gross. 


A  party  must  rely  on  his  own 
exceptions. 

Excepting  to  instructions. 

Noting  exceptions  to  instruc- 
tions. 

Conclusions  of  law  stated  on  a 
special  finding  of  facts. 

794.  Specifying  error  on  exceptions 

to  conclusions  of  law. 

795.  Ruling  on  a  motion  for  new  trial. 

796.  Questioning  judgments. 


791. 

792. 

793- 


CHAPTER    XIII. 
BILLS   OF    EXCEPTIONS. 


§  797.    Object  of  a  bill  of  exceptions.         §  799.   By    whom    the   bill    should    be 
•798.   The  duty  of  settling  a  bill  of  ex-  signed. 

ceptions  is  judicial.  800.    Time  within  which  the  bill  may 

be  signed. 


TABLE  OF  CONTEXTS. 


§  Soi. 

S02. 
S03. 

804. 
S05. 
S06. 
S07. 

80S. 
S09. 

810. 
Sn. 

812. 
S13. 

S14. 
Sl.v 

816. 


§827. 
S2S. 
S29. 

S30. 
831. 
S32. 
833- 
834- 

835- 

836. 
837- 

838. 

839- 


How  the  order  extending  time 
must  be  shown. 

Presenting  the  bill  to  the  judge. 

Time  can  not  be  extended  after 
the  close  of  the  term. 

Bills  filed  in  term. 

Filing  after  term. 

Form  of  the  bill. 

Requisites  of  the  bill — General 
doctrine. 

Stating  the  exceptions. 

Facts  on  which  exceptions  are 
based  must  be  stated. 

Duty  of  the  trial  judge. 

Effect  of  the  statements  and  re- 
citals of  the  bill. 

Making  error  apparent. 

Rulings  made  in  the  formation 
of  issues. 

Collateral  motions. 

Recitals  in  direct  motions. 

Rejected  pleadings. 


§  S17.  Instruments  that  may  be 
brought  into  the  record  by  a 
bill  of  exceptions. 
81S.  Making  written  instruments 
part  of  the  bill  by  reference — 
General  rule. 

819.  Instruments    once    properly    in 

the  record  need  not  be  copied 
in  the  bill. 

820.  Oral  evidence. 

821.  Stenographer's  reportof  the  evi- 

dence. 

522.  Making    stenographer's    report 

part  of  the  bill. 

523.  The  rule  where  all  the  evidence 

must  be  in  the  record. 

524.  The  general  recital  not  always 

controlling. 

525.  Amendment  of  bills   of  excep- 

tions. 
826.    Application    for    the    order    to 
amend. 


CHAPTER  XIV 


PRESENTING    AN    OPPORTUNITY    FOR    REVIEW. 


The  theoretical  doctrine. 

The  practical  doctrine. 

The  mode  of  presenting  ques- 
tions for  review. 

The  office  of  a  motion  for  a  new 
trial. 

The  office  of  the  motion  on  ap- 
peal. 

The  motion  can  not  precede  the 
decision. 

The  motion  not  cut  off  by  entry 
of  judgment. 

Motion  in  arrest  of  judgment 
cuts  off  a  motion  for  a  new 
trial. 

All  causes  must  be  embraced  in 
one  motion. 

Successive  motions. 

Exceptions  to  the  rule  forbid- 
ding successive  motions. 

Different  classes  of  motions. 

Joint  motions. 


§  840 


Requisites  of  the  motion — Gen- 
erally. 

Time  of  filing. 

Where  filed. 

The  motion  ordinarily  goes  to 
the  whole  case. 

844.  Exceptions  to  the  general  rule. 

845.  The  motion  should  be  complete 

in  itself. 

Rulings  on  the  pleadings  and 
objections  to  the  form  of  the 
judgment  not  assignable  as 
causes  for  a  new  trial. 

Inconsistency  between  the  an- 
swers of  the  jury  to  interroga- 
tories and  the  general  verdict. 

Irregularity  in  the  proceedings 
of  the  court. 

Irregularity  of  the  jury  or  pre- 
vailing party. 

Abuse  of  discretion. 

Misconduct  of  the  jury  or  pre- 
vailing party. 


S41. 

S42. 
§43- 


846. 

847. 

84S. 
S49. 

850. 

851. 


XXIV 


TABLE  OF  CRN'TKM  S. 


Accident  or  surprise. 

Errors  of  law  occurring  on  the 
trial. 

Verdict  or  finding  contrary  to 
law  or  not  sustained   by  suffi- 
cient evid< 
S55.    Damages  —  Questioning   the 
amount  of  recovery. 


§  852- 
853- 

8S4- 


1  gjes  in  actions  in  tort  and 
damages  in  actions  on  con- 
tract. 

S57.    Newly  discovered  evidence. 

85S.   Counter-affidavits. 

S59.   Verification  of  the  motion. 


PART  III. 

FORMS. 


CHAPTER  I. 

FORMS    VSF.n    IN    TRIAL    PRACTICE    INCIDENT    TO    APPEALS. 


§  S60.    Caption — Title   of   cause — Sig- 
nature. 

861.  Agreed  case. 

862.  Reserved  questions  of  law — Bill 

of  exceptions. 

863.  Questions  of  law  arising  on  the 

instructions — Bill    of    excep- 
tions. 

864.  Motion  to  dismiss  appeal — Bill 

of  exceptions. 

865.  Motion  to  make  more  specific — 

Bill  of  exceptions. 

866.  Challenge  of  juror — Bill  of  ex- 

ceptions. 

867.  I5ill  of  exceptions  on  the  over- 

ruling of  a  motion  for  a  new 
trial. 


§  868.    Misconduct    of  jurors — Bill   of 
exceptions. 

869.  Appeal  in  term — Record  entry. 

870.  Appeal  bond. 

87 1.  Appeal  after  term — Notice  be- 

low to  party. 

872.  Appeal    after    term — Notice   to 

the  clerk. 

873.  Praecipe  for  transcript. 

874.  Notice  to  co-party. 

875.  Transcript — Formal  parts. 

876.  Transcript — Certificate  of  clerk 

where  entire  recordis  ordered. 

877.  Transcript  —  Certificate  where 

special  directions  are  given. 


CHAPTER    II. 

FORMS  USED  IN  APPELLATE  PRACTICE. 


§  878.   The  assignment  of  errors — Or- 
dinary form. 
S79.   The  assignment  of  errors — Ap- 
peal from  the  Marion  Superior 
Court. 


§  SSo.    Failure    to    notify    co-parties — 
Motion  to  dismiss. 
S81.    Acceptance  of  payment  of  judg- 
ment— Motion  to  dismiss. 


TABLE  OF  CONTENTS. 


8S2.    Failure    to    perfect    the    appeal 
within  the  time  prescribed — 
Motion  to  dismiss. 
'  S83.    Common  joinder. 

8S4.  Application  for  leave  to  amend 
the  assignment  of  errors. 

SS5.    Assignment  of  cross-errors. 

886.  Petition  for  certiorari — Omis- 
sion of  parts  of  record. 

8S7.  Petition  for  certiorari — Change 
of  record  bv  nunc  pro  tunc 
entry. 


§  88S.    Petition  to  advance — Matter  of 
public  interest. 

889.  Petition  to  advance — Matter  of 

private  concern. 

890.  Motion  to  vacate  supersedeas. 

891.  Notice  of  motion. 

892.  Motion  to  reinstate. 

593.  Petition  for  rehearing. 

594.  Motion  to  modify  mandate. 


TABLE  OF  CASES. 


^References  are  to  Pages.] 


Abbe  v.  Mair,  14  Cal.  210,  396, 

Abbott  v.  Chaffee,  S3  Mich.  256, 
v.  Dwinnell,  74  Wis.  514, 
v.  Johnson,  47  Wis.  239, 
v.  Morrissette,  46  Minn.  10, 
v.  Union,  etc.,  Co.,  127  Ind.  70, 
v.  Zeigler,  9  Ind.  511, 
Abdill  v.  Abdill,  26  Ind.  287 

v.  Abdill,  33  Ind.  460, 
Abell  v.  Cross,  17  la.  17, 

v.  Riddle,  75  Ind.  345, 
Ableman  v.  Booth,  11  Wis.  499, 
Abney  v.  Kingsland,  10  Ala.  355, 


671 

73§ 

574 

673 

581 

599 

65,  7i 

282,  284 

507,  609 

663 

565,  60S 

217 

699, 

700 

277 

493 
678 
217 
677 
769 


Abraham  v.  Chase,  11  Ind.  513, 
Abrams  v.  Lee,  14  111.  167, 

v.  Smith,  S  Blackf.  95, 
Abshire  v.  State,  52  Ind.  99, 

v.  Williams,  76  Ind.  97, 
Acheson  v.  Sutliff,  18  Ohio,  122, 
Achey  v.  State,  64  Ind.  56,  527,  579,  619 
Acker   v.  Alexander,  etc.,  Co.,  84 

Va.  648,  3°8 

Acton  v.  Dooley,  16  Mo.  App.  441,  5S2 
Adair  v.  Morgentheim,  114  Ind.  303,  48S, 

595 
Adams  v.  Beem,  4  Blackf.  128, 

v.  Crosby,  4S  Ind.  153, 

v.  Davis,  109  Ind.  10, 

v.  Fox,  40  N.  Y.  577, 

v.  Gowan,  S9  Ind.  358, 

v.  Harrington,  114  Ind.  66, 

v.   Higgins  (Fla.),  1   So.  Rep. 


349 
698 
402 
601 
647 
H7 


32I> 


606, 


Holmes,  4S  Ind.  299, 
Irving  Nat.  Bank,  116  N.Y. 


Jeffries,  12  Ohio,  253, 
Kennedy,  90  Ind.  318, 
Lamson,  etc.,  Co.,  59  Hun, 


178 
692 

729 

21 

640 


v.  La  Rose,  75  Ind.  47 

v.  Lee,  S2  Ind.  587, 
v.  Lockwood,  30  Kan. 
v.  Sage,  2S    N.  Y.  103 
v.  Secor,  6  Kan.  542, 


1, 
751 


736 

296,  725, 


752 


768 

536 
733 
587 
635 


255. 


Adams  v.  Smith,  6  Dak.  94, 

v.  State,  65  Ind.  565, 

v.  State,  87  Ind.  573, 

v.  State,  25  Ohio  St.  584, 

v.  Thompson,  18  Neb.  541,  317, 

v.  Town,  3  Cal.  247, 

v.  Wilson,  60  Ind.  560,  52, 

v.  Woods,  S  Cal.  306,  4, 

Adamson's  Appeal,  no  Pa.  St.  459, 

Adams  County   v.  Hunter,  7S   la. 

328,  391. 

Adams  Express  Co.  v.  Pollock,  12 

Ohio  St.  618, 
Addersonv.  Marshall,  7  Mont.28S, 
Addison  v.  State,  48  Ala.  478, 
Addleman  v.  Erwin,  6  Ind.  494, 
Addy  v.  Janesville,  70  Wis.  401, 
Adler  v.  Sewell,  29  Ind.  598, 
/Ernes  v.  Chappel,  28  Ind.  469, 
^Etna  Ins.  Co.  v.  Aldrich,  38  Wis. 

107, 
/Etna  Ins.  Co.  v.  Baker,  71  Ind.  102, 
^Etna,   etc.,   Co.  v.  Finch,  84  Ind. 
301,  4SS, 

Agate  v.  Morrison,  S4  N.  Y.  672, 
Agnew  v.  Adams,  26  S.  C.  101, 
Ahern  v.  McGreary,  79  Cal.  44, 

v.  McGeary,  79  Cal.  250, 
Ahrens  v.  State  Bank,  3  S.  C.401, 
Aiken  v.  Bruen,  21  Ind.  137,       524, 
v.  Osing,  94  Ind.  507, 
v.  Short,  1  H.  &N.  210, 
Aimes  v.  Chappel,  2S  Ind.  469, 
Akerly  v.  Vilas,  24  Wis.  165, 
Alabama,  etc.,  Co.  v.  Frazier  (Ala.), 

9  So.  Rep.  303, 
Alabama  Gold,  etc.,  Co.  v.  Nichols, 

109  U.  S.  232, 
Alabama  State  Bar  Asso.,  Ex  f  arte 

(Ala.),  8  So.  Rep.  76S, 
Albere  v.  Kingsland,  13  N.Y.  Sup. 

794- 
Albert  v.  State,  65  Ind.  413,        589, 
Albertson  v.  State,  95  Ind.  370 

v.  Williams,  23  Ind.  612, 
Albion,  etc.,  Co.  v.  Richmond,  etc., 

Co.,  19  Nev.  225, 

(xxvii) 


490 
690 
640 
746 
326 

4 
781 

I42 

79 

412 

693 
155 
537 

782 

^ 
354 
248 

3i8 

597 

596 

535 

643 

269 


63S 
693 


659 

51 
439 

596 
592 

672 
630 

5'8 


XXV111 


TABLE  OF  CASES. 


[References  a 
A 11  nun, Town  of,  v.  Hetrick,  90  Ind. 

545.  580 

Albrecht   v.   C.    C.    Foster  Lumber 

Co.  (Ind.).  26  N.  E.  Rep.  157.     17.  31 
Alcorn  v.  Morgan,  77  Ind.  [84,  743 

Alexander  v.  Alexander,  104  V  Y. 

643,  126,  350 


\    Benn<  tt,  60  N.  Y.  204, 
v.  Byrd,  85  Ya.  690, 
v.  Dunn,  5  Ind.  I  22, 
v.  Feary,  9  Ind.  481, 
v.  I  lumber,  86  K.v.  .565, 
v.  Northwestern,  etc.,  Univer- 
sity, 57  Ind.  466, 

\ .  ( >shkosh,  33  Wis.  277, 
v.  Steele,  84  Ala.  7,7,2, 

v.  Stewart.  23  Ark.  18, 

Alexandria,  etc. ,v.  McVeigh,84  Va. 

41- 

v.  Painter,   ilnd.  A  pp.  5S7, 

Alger  v.  Merritt,  16  la.  1:1, 
Alkan  v.  New  Hampshire, etc., Co., 

53  Wis.  136, 
All  v.  Barnwell,  29  So.  Car.  161,  7 

S.  E.  Rep.  58, 
Alleman  v.  Wheeler,  101  Ind.  141, 
Allen  v.  Aldrich,  29  N.  H.  63, 
v.  Allen.  So  Ala.  154, 
v.  Bond,  1 12  Ind.  523, 
v.  Cerro  Gordo  Co..  34  Ala.  54, 
v.  Claybrook,  58  Mo.  124, 
v.  Commonwealth,  86  Ky.  642. 
v.  Commonwealth  (Ky.),  12  S. 
W.  Rep.  582, 

v.  Crary,  10  Wend.  349, 
Etheridgo,  84  Ga.  550, 


4 
7S 

672 
39 1 


269 
559 

4*3 

1  So 


492 
5S1 

7S8 

559 

143 
605 

62  I 
456 

79 ' 
62 

483 

120 

560 

54 

560 

v.  Gann   (Ind.),  29  N.  E.  Rep.,  171 

v.  Gillum,  16  Ind.  234,  793 

v.  Grider,  24  Ark.  271.  310 

\ .  (  1!  iffin,  98  N.  C.  120,  56 

v.  1  lostetter,  16  Ind.  15,  62 

\     Mason,  17  111.  App.  31S,  639 

v.  Randolph,  48  Ind.  ^96,  589 

v.  Ray.  96  Mo.  542,  155 

v.  State,  61  Ga.  166,  579 

v.  State.  74   Ind.  210,  296,  297 

v.  Strickland,  [00  V  C.  22;,        146 

v.  United   States.  22  Ct.  oi'Cl. 

300,  489 

Alley  v.  State.  76  Ind.  94,  764,  7S7 

Allgro  v.  Duncan, 24  How.  Pr.210,  790 

Ailing  v.  Ward  (111.),  24  N.  K.Rep. 


r^- 


Wenzel,  133  111.  264, 
Allis  v.  Day.  i  \  Minn.  516, 
v.  Gumberts,  1  Ind.  104, 
v.  Ins.  Co.,  97  I*.  S.  144, 
Allison  v.  Gregory  (Tex.),  15  S.W 
Rep.  416,  314 


120 
488,  560 
646 
401 
573 


re  to  Pages.] 

Allor  v.  Auditor,  43  Mich.  76,  2S 

Altmaver  v.  Metropolitan, etc.,  Ry. 
Co.,  14  N.  Y.  Supp.  311,  544 

Amason  v.  Nash.  19  Ala.  104.  071 

America  Central  Ins.  Co.  v.  Hatha- 
way, 43  Kan.  399,  624 

American    Express  Co.  v.   Patter- 
son, 73  Ind.  430,  5S8 

American    Ins.    Co.   v.    Butler,   70 

Ind.  1,  4S0 

v.  Gallaher,  75  Ind.  168,  774 

v.Gibson,  104  Ind.  336,  287,295.  727 

v.  Yearick.  7S  Ind.  202,  744 

American   Legion  v.  Rowell,  15  S. 
W.  Rep.  217.  345 

American    White     Bronze     Co.    v. 
Clark,  123  Ind.  230,  217,   783 

Ames  v.  Howard,  1  Sumnr.  482,  7S8 

v.  Lake  Superior,  etc.,  Co.,  21 
Minn.  241,  26 

v.  New  Jersey  Franklinite  Co., 
1  Beasley  (N.  j.),  66, 

Amherst  v.  Hadlev.  1  Rick.  38, 

Amick  v.  O'Hara,  6  Blackf.  258, 

Amis  v.  Myers,  16  How.  492, 

Ammerman  v.  Crosby,  26  Ind.  451, 

v.  State,  9S  Ind.  165, 
Amonett  v.  Montague,  63  Mo.  201, 
Amory  v.  Amory,  91  U.  S.  356, 

v.  Reilly,  9  Ind.  400, 
Anderson  v.  Ackerman,  88  Ind.4Si, 

V.  Ames,  6  la.  486, 

v.  Anderson,  65  Ind.  196, 
v.  Anderson,  12S  Ind.  254, 
v. Board  (Minn.),  48  X.W. Rep. 

1022, 

v.  Brown,  i)  Mo.  646, 

v.  Caldwell,  91  Ind.  451, 

v.  1  )onne.ll,  66  Ind.  150,  712,  715, 

v.  Dunn,  6  Wheat.  204, 

v.  Hathway    (Ind.),    30   N.   E. 

Rep. , 

v.  McDonaldson,  ^2  111.  404, 
v.  Market,  etc.,  Bank,  66  How. 

Pr.  S, 

v.  Mitchell.  ^S  Ind.  ^92, 

v.  Neal.  88  Ind.  317.'  36S, 

v.  People,  2S  111.  App.  317, 

v.  Rome,  etc.,  Co.,   54  N.  Y. 


334. 

v.  Sloane,  1  Col.  4S4, 
v.  State,  28  Ind.  22, 
v.  State,  104  Ind.  467,  617, 

v.  Weaver.  17  Ind.  223, 
v.  Wilson,  100  Ind.  402, 
v.  Wyant.  77    la.  49S, 
Anderson  Bridge  Co.  v.  Applegate, 

13  Ind- 339. 


J34 

621 

277 
593 
76., 

767 

2S2 
746 
390 
665 
704 

763 
72S 
781 

3H 

26 
7-4 

7 

791 

57o 

97 

37o 

iS 

656 

G37 

4 
623 
300 
399 
597 

697 


TABLE  OF  CASES. 


XXIX 


[References  a 
Anderson,  etc.,  Ass'n  v.  Thompson, 

8;  Ind.  278,  174,  462 

Anderson,  etc.,  Co.  v.  Thompson, 

88  Ind.  405.  354.  399 

Anderson,  City  of,  v.  Neal,  S8  Ind. 

3*7.  374 

Andis  v.  Personett,  10S  Ind.  202,       570 

v.  Richie,  120  Ind.  138,  781 

Andre  v.  Frybarger,  70  Ind.  2S0,       628 

Andrews  v.  Elliott,  6  E.  &.  B.  338,    424 

v.  Hammond,  8  Blackt".  540,         640 

v.  Ohio,  etc.,  R.  Co.,  14  Ind.  169,  156 

v.  Runyon,  65  Cal.  629,  572 

v.  Steele,   7   C.  E.  Green  (N. 

JO.  47S,  133 

v.  United  States,  16  Ct.  of  CI., 
265,     .  127 

Angevine  v.  Ward,  66  Ind.  460,  229 

Angle  v.  Speer,  66  Ind.  488,  179 

Anon,  iS  Abb.  Pr.  87,  11S,  270 

Anon,  59  N.  Y.  313,  516 

Ansley  v.  Robinson,  16  Ala.  793,         74 
Anson  v.  Blue  Ridge,  etc.,  Co.,  23 

How.  1,  324 

Antoni  v.  Wright,  22  Gratt.  S33,  28 

App  v.  State,  90  Ind.  73,       251,  517,  680 
Apple  v.  Atkinson,  34  Ind.  518,         266 
Applegate  v.  Edwards,  45  Ind.  329,     85 
v.  White,  79  Ind.  413,  757 

Application  of  the  Senate,  10  Minn. 

78,  9  Col.  623,  4 

Arbintrode  v.  State,  67  Ind.  267,       249, 

407 

Arbuckle  v.Biederman,g4  Ind.  16S,  36S 

v.  McCoy,  53  Ind.  63,  299,  7S6 

v.  Swim,  123  Ind.  20S,  103,  274,  345 

Archer  v.  Heinan,  21  Ind.  29,  603 

Archey  v.  Knight,  61  Ind.  311,    34,  154, 

363,  443,  44s 
Archibald  v.  Lamb,  9  Ind.  544,  671 

v.  State,  122  Ind.  122,  239.  254 

Architectural,   etc.,   Co.  v.  Brook- 

lyn,  85  N.  Y.  652,  325 

Arcia  v.  State,  2S  Tex.  App.  19S,     1^9, 

661 
Argenti  v.  San  Francisco,  30  Cal. 

458>  4S9 

Argo  v.  Barthand,  So  Ind.  63,  2S5 

Arizona,  etc.,  Co.  v.  Copper  Queen 

Co.  (Ariz.),  11  Pac.  396,  469 

Arkansas,  etc.,  Co.  v.  Canman,  52 

Ark.  517,  693 

Aden  v.  State,  18  N.  H.  563,  674 

Amies  v.  Chappel,  2S  Ind.  469,  129 

Armijo  v.  Abeytra  (N.  M.),  25  Pac. 

Rep.  777,  446 

Armstrong  v.  Athens  Co.,  16  Pet. 

281,  21 

v.  Caesar,  72  Ind.  2So,  404 

v.  Clark,  17  Ohio,  495,  765 


re  to  Pages.\ 

Armstrong    v.   Gilchrist,  2    Johns. 
Cas.  424,  32 

v.  Horshman,93  Ind.  216,  760 

v.  Tait,  8  Ala.  635,  5711 

Arndt  v.  Hosford,  48  N.  W.  Rep. 

9s  1.  345 

Arnold  v.  Angell,  62  X.  Y.  508,  724 
v.  Commonwealth,  80  Ky.  300,  7 
v.  Engleman,  103  Ind.  512,  108 

v.  Frost,  9  Benedict,  267,  337 

v.  Hawkins,  27  Mo.  App.  476,      40 
v.  Waldo,  36  Vt.  204,  112 

Arrowsmith    v.   Rappelge,   19   La. 

Ann.  327,  112 

Arterburn  v. Young,  14 Bush.  (Ky.) 

5°9.  ,  J-4 

Arthurs  v.  Hart,  17  How.  6,  613 

Artman  v.  West  Point,  etc.,  16  Neb. 

572,  70 

Asch  v.  Wiley,  16  Neb.  41,  320 

Ashbaugh  v.  Edgecomb,  13  Ind.  466,  541 
Ashe  v.Glenn,  33  So.  Car.  606,  446,  452 
Ashley  v.  Foreman,  S5  Ind.  55,  572 

v."  Laird,  14  Ind.  222,  704 

Ashmole  v.Wainwright,  2  0^6.837,  10 
Ashton  v.  Shepherd,  120  Ind.  69,     267, 

396 
Ashworth   v.   Kittridge,    12    Cush. 

i93'  535 

Askren  v.  State,  51  Ind.  592,  77 

Asking  v.  Miles,  16  Ind.  329,  614 

Aspinwall  v.  Board,  78  Ind.  372,  766 
Associates  of  Jersey  Co.  v.  Davison, 

5  Dutch.  415,  267 

Astley  v.  Capron,  S9  Ind.  167,    692.  765 

Atchison,   etc.,  Co.    v.   Bayes,   42 

Kan.  609,  620 

v.  Benton,  42  Kan.  69S,  601 

v.  Dougan,  39  Kan.  1S1,  100 

v.  Plunkett,  25  Kan.  iSS,  579 

v.  Stanford,  12  Kan.  354,  731 

v.  Thul,  29  Kan.  466,  539 

v.  Wagner,  19  Kan.  335,  770 

Athens,   etc.,   Works,  v.   Bain,   77 

Ga.  72,  475 

Atherton  v.  Fowler,  91  U.  S.  143,  499 
Atkins  v.  Wyman,  45   Md.  399.  463 

Atkinson  v.  Dailey,  107  Ind.  117,     570, 

577 
v.  Gwin,  8  Ind.  376,  570 

v.  Martin,  39  Ind.  242.  295,  752 

v.  Mott,  102  Ind.  431,  4X3 

v.  Olesener,  ^7  Hun.  592,  655 

v.  Taylor,  2  Wills.  117,  2S6 

Atlantic    Ins.    Co.    v.    Lemar,    10 

Paige,  505.  457 

Atlas,  etc..  Co.  v.  Byrus,45  Ind.  133,  72 
Atlas    Mining  Co.  v.  Johnston,  23 


Mich.  36, 


28 


X  X  X 


TABLE  OF  CASES. 


{References 
Attorney-General    v.    Blossom,     i 

Wis.  317,  431 

v.  Boston,  123  Mass.  r  1.33 
v.  City  of  Eau  Claire,  37  Wis. 

400.  I  |i 

v.  Luii,  2  Wis.  5117,  S 
\  .   North   Am.  Life  Ins.  Co.,  77 

V    V.  21 ,;.  270 

v.  Railroad  Co.,  35  Wis.  425,     431, 

•13- 

v.  Sillem,  in  II.  L.  704,  21 

Atwell  v.  Miller,  6  Md.  10,  697 

Atwood  v.  Welton,  57  Conn.  514,     713 

Auditor    v.    Atchison,  etc.,    Co.,   6 

Kan.  500,  5,  iS 

Augusta,    etc.,   Co.    v.    Randall 

Ga.  297,  '    623 

Aull    Savings     Bank     v.    Aull,    So 

Mo.  199,  699 

Aultman,  etc.,  Co.  v.  Weir,  134  111. 

'37-  781  79 

Aurora,    City  of,  v.  Cobb,  21    Ind. 

493-  6l5 

v.  Fox,  7S  Ind.  1,  562 

v.  Johnson,  46   Ind.  315,     256,  769, 

771 
v.  West,  2 g  Ind.  I  (S,  72 

Austin  v.  Bainter,  40   111.  82,  349 

v.  Crawford  Co.,  30  Ark.  57S,  1 12 
v.  Earhart,  88  End.  [82,  266,  279,709 

Averil  v.  Dickerson,  1  Blackf.  3,  209,310 

Avery  v.  Dougherty.  [02    Ind.  413,    325 

v.  Pritchard,  106  N.  C.  344,        446 

v.  Ruffin,  4  Ohio,  420,  5]  1 

v.  Slack.  17  Wend.  85,  631 

V.  Chase,  S3    Ind.  546,  567 

Avers  v.  Adams,  82  Ind.  109,  712 

V.  Slate,  88  Ind.  275,  252 

Ayres  v.  Carver,  17  How.  591,  73 

AylsWOrth  V.    Brown,  31    Ind.  270,      509 
Aylesworth  v.  Milford,  3S  Ind.  226,  121, 

360,448 
Ayrault  v.  Chamberlain,  33   Barb. 


829, 


01; 


B 


Baars  v.  Creary,  23  Fla.61,  109 

Babb  v.  Bruere,  2  ;  Mo.  App.  004,        12 

v.  Missouri  University,  40  Mo. 

A.pp.  173.  73s 

Babcock  v.  People,  13  Col.  515,        528, 

530.578 

Bacas  v.  Smith,  33  La.  Ann.  139,      444 

Bacon,  r.  ■•.  parte,  6  Cowen,  392,        440 

v.  Callendar,  6  Mass.  $03,  61 

v.  Witherow,  no  Ind.  94,  105, 

-'I-  263,  333 

Baddcley  v.  Patterson.  7S  Ind.  157,   294 

Badders  v.  Davis,  ss  Ala.  367,  739 

Badger  v.  Daniel,  S2  N.  C.  46S,  91 


are  to  J'un-es.] 

Bagley   v.   Grand    Lodge,  etc.,  131 

IH.498,  547 

Baggs  v.  Smith,  53  Cal.  SS,  456 

Bailey  v.  Hervey,  [35  Mass.  172,       589 

v.  Lubke,  8  Mo.  App.  57,  100 

V.  Martin,   1  [9  I  lid.  103,  504 

v.  State,  39  Ind. 438,  079 

v.  Troxell,  43   Ind.  432,        606,674 

Bailv,  Ex  parte,  2  Cow.  479,  435 

v.  Schrader,  34  Ind.  260,  6^^ 

v.  Taat'e,  29  Cal.  424,  513 

Bain  v.  Doran.  54  Pa.  St.  124,  663 

v.  Goss,  1 23  Ind.  51 1,  159 

v.  Whitehaven,  etc.,  Co.,  3  II. 
L.  Cas.  1,  746 

Baird  v.  Gillett,  47  N.  Y.  1S6,  657 

v.  Mayor,  74  X.  Y.  382,  646 

Baker  v.  Armstrong.  57  Ind.  1S9,  673 
v.  Ashe(  Tex.!,  16S.W.  Rep.  36,661 
v.  Baker,  69  Ind.  399,  640 

V.  Board,  ;; }  Ind.  497,  307 

v.  Braslin  (R.  I.),  18  Atl.  Rep.  ' 
1039,  143 

v.  Carr,  100  Ind.  330,  569 

v.  Chisholm,  3  Tex.  157,  13 

v.  Dessauer,  49  Ind.  28,        56S,  613 
v.  Dubois,  32  Mich.  92,  638 

v.  Gordon,  23  Ind.  204,  SS,  290 

v.  Griffitt,  83  Ind.  411,  S9 

v.  Groves,  126  Ind.  593,  30,  31 

v.  Hine,  54  Ind.  542,  530 

v.  Horsey,  21  Ind.  246,  751 

v.  Jewell.  6  Mass.  460,  602 

v.Joseph,  16  Cal.  173,  791 

v.  Loring,  65  Mo.  527,  159 

v.  Ludlam,  11S  Ind.  S7,        2S7,  728 
v.  McGinnis,  22  Ind.  257,  761 

v.  Moor,  84  Ga.  186,  293,  792 

v.  Morris,  10  Leigh.  2S4,  310 

v.  Smiley,  84  Ind.  212,    219, 296,  6S7 
v.  Neff,  73  Ind.  68,  592 

v.  Simmons.  40  Ind.  442,      6S2,  768 
V.  State,    in.)   Ind.  47,  2  17 

v.  Swift.  87    Ala.  530,  164 

v.  Swift,  6  So.  Rep.  153,  34S 

v.  White,  92  V.  S.  5]  |,  499 

Baldenberg  v.  Worden,  14  W.  Va. 
397,  4S1 

Baldridge  v.  Penland,  6S  Tex.  441,  30S, 

672 
v.  Scott,  4S  Tex.  17S,  100 

Baldwin  v.  Burrows,  95  Ind.  Si,  292,  534 

v.  Grand  Trunk  Ry.  Co.,  64  N. 

H.  596,  623 

v.  Humphrey,  75  Ind.  153,   282,  283 

v.  School  City  of  Logansport, 

7}  Ind.  5 1'..  728 

'  v.  Wright,  3  Gill.  (Md.)  241,         71 

Bales  v.  Brown,  57  Ind.  2S2,  1S0,  558 
v.  Scott,  26  Ind.  202,  394 


TABLE  OF  CASES. 


XXXI 


[References  a 

Balfe  v.  Lammers,  109  Ind.  347,  73 

Ball  v.  Cox,  7  Ind.  453,  679 

v.  Cox,  .29  \V.  Va.  407,  508 

Ballance  v.  Forsythe,  21  How.  3S9,  134 
Ballew  v.  Roller,  124  Ind.  557,  4S8,  595 
Ballinger  v.  Tarbell,  16  Iowa,  491,    117, 

285 

Baltimore,  etc.,  Co.,  Ex  parte,   108 

U.  S.  566,  439 

v.  Barnnm,  79  Ind.  261,        770,  774 

v.Johnson,  83  Ind.  57,  45 

v.Johnson,  84  Ind.  4-:o,  126 

v.  Kreiger,  90  Ind.  3S0,        394,  395 

v.  McWhinney,  36  Ind.  436,        615 

v.  Rowan,  104  Ind.  8S,  785 

v.  State,  69  Md.  551,  481 

Balue  v.  Richardson,  124  Ind.  480,     766 

Bane  v.  Ward,  77  Ind.  153,  279,  296 

Hank  v.  Sweeney,  1  Pet.  567,  439 

Bank  of  America  v.  Fortier,  27  La. 

Ann.  2^3,  20S 

Bank  of  Metropolis  v.  New  Eng- 
land Bank,  6  How.  212,  661 
Bank  of  Mt.  Pleasant  v.  Sprigg,  1 

McLean,  17S,  311 

Bank  of  Pleasant  Hill  v.  Wills,  79 

Mo.  275,  699 

Bank  of  U.  S.  v.  Daniel,  12  Pet.  32,  50 
Bank  of  Utica  v.  Mersereau,  3  Barb. 

Ch.  528,  593 

Bank    ot     Vincennes    v.    State,    1 

Blackf.  267,  217 

Bannister  v.  Allen,  1  Blackf.  414,        177 

v.  Jett,  S3  Ind.  129,  614 

Banter  v.  Levi,  1  Chit.  713,  313 

Banton  v.  Campbell,  2  Dana,  421,       74 

Baragree  v.  Cronkhite,  33  Ind.  192,   590 

Barber  v.  Briscoe,  8  Mont.  214,  639 

Barbon  v.  Searle,  1  Vern.  416,  451 

Barbour  v.  McK.ee,  7  Mo.  App.  587,  484 

Barcus  v.  Evans,  14  Ind.  3S1,  599 

Bard  v.  Poole,  12  N.  Y.495,  601 

Bager  v.  Hoover,  120  Ind.  193,  597 

v.  Manning,  43  Ind.  472,       Il6,  11S 

Barker  v.  Barker,  39  N.  H.  40S,  11S 

v.  Hobbs,  6  Ind.  385,  545,  556 

v.  Livingston  Co.  Bank,  30  111. 

59J.  547 

Barkly  v.  Copeland,  74  Cal.  1,  655 

Barley  v.  Dunn,  85  End.  338,  774 

Barlow  v.  Black,  25  la.  308,  411 

v.  State,  2  Blackf.  114,  250,  619,  744 
Barnaby  v.  State,  106  Ind.  539,  256,  2^7, 

765 
Barnard  v.  Cox,  25  Ind.  251,  417 

v.  Graham,  14  Ind.  322,  7S9 

Barndollar  v.  Colton,  5  Col.  29,  273 

Barndt  v.  Frederick,  78  Wis.  1,  416 

Barnes  v.  Bell,  39lnd.32S,  283,394,  72S 

v.  Conner,  39  Ind.  294,  2S1 


re  to  JPag'es.] 

Barnes  v.  Dell,  39  Ind.  32S,  281 

v.  Easton,  98  N.  C.  116,  8 

v.  Ingalls,  39  Ala.  193,  739 

v.  Rahner,  39  Ind.  589,  2Si 

v.  State,  28  Ind.  82,  291 

v.  Stevens,  62  Ind.  226,  635 

v.  Wright,  39  Ind.  293,  2S7,  728 

Barnett  v.  Feary,  101  Ind.  95,  =537,  562, 

'57' 
v.  Harshbarger,  105  Ind.  410,     10S, 

-74 
v.  Leonard,  66  Ind.  422,  613 

Barney  v.  Barney,  14  Iowa,  1S9,         144 


v.  Dudley,  40  Kan.  247, 


[8 


v.  Hartford,  73  Wis.  95,  288 

Barnhart  v.  Ford,  41  Kan.  341,  677 

Baron  v.  Korn,  127  N.  Y.  224,  734 

Barr  v.  Hannibal,  etc.,  Co.,  30  Mo. 

App.  24S,  413 

Barren  Creek,  etc.,  v.  Beck,  99  Ind. 

247,  .^2 

Barreon  v.  Frink,  30  Cal.4S6,  671 

Barret's  Appeal,  In  re  (Pa.),  13  Atl. 

Rep.  72,  S6 

Barrett    v.   Delano   (Me.),  14  Atl. 

Rep.  2S8,  663 

Barrett  v.  Fisch,  76  la.  553,  412 

Barribeau  v.  Blont,  17  How.  43,  115 

Barry  v.  Briggs,  22  Mich.  201,  S3 

v.  Edmunds,  116  U.  S.  550,  49 

v.  Mercein,  4  How.  574,  3SS 

Barth  v.  Clise,  12  Wall.  400,       571,  6^6 

v.  Rosenfield,  36  Md.  604,    '  68 

Bartholomew  v.  Langsdale,  31;  Ind. 

273,  345-  746,  7S2 

v.  Pierson,   112    Ind.  430,     19,  371, 

475>  7i3 

v.  Preston,  46  Ind.  2S6,  269 

Bartlett's  Appeal,  82  Me.  210,    219,  314 

Bartlett  v.  Beadmore,  74  Wis.  4S5,    56S 

v.  Hoyt,  33  N.  II.  151.  '      733 

v.  Pittsburgh,  etc.,  Co.,  94  Ind. 

282,  563,  564 

v.  Smith,  11  Mees  &  W.  4S3,      701 

v.  State,  28  Ohio  St.  349,    '        6S1 

Bartley  v.  Phillips,  114  Ind.  1S9,       250, 

29x>  293,  581,647,  716,  791 

v.  State,  in  Ind.  358,    256,  257,  758 

Bartling  v.  Behrends,  20  Neb.  211.    577 

Barton  v.  Kane,  17  Wis.  38,        568,  611 

v.  Long,  45  N.  J.  Eq.  160,  122 

v.  State,  67  Ga.  653,  250 

Bascom  v.  Young,  7  Mo.  1,  671 

Basey  v.  Gallagher,  20  Wall.  670,     675, 

676 

Bass  v.  Comstock,  3S  N.  Y.  21,  635 

v.  Doermer,  112  Ind.  390,    174,  37S, 

446-  447 

v.  Elliott,  105  Ind.  517,         217,  74S 


XXXI' 


TABLE  OF  CASES. 


[ /■'-  I,  ycnces  are  to  Pages.] 


592 
[20 

528 

773 
142 


v.  Ft.  Wayne,  121  [nd.  389,       1  17. 

215,  - 
v.  Smith,  61  Ind.  72.  637 

Bass    Foundry,  etc.,  v.   Board,  115 

[nd.  234,  13.  4-"<  r,7° 

Bassett  V.  Warner,  23  Wis.  673,  48S 

Bateman   v.   Florida,  etc.,  26  Fla. 

v.  Ball,  72  111.  10S, 

V.  Hates,  ig  Tex.  [22, 

v.  Bulkley,  7  111.  3S9, 

v.  Ryberg,  40  Cal.  465, 

v.  Scott,  26  M<>.  A.pp.  42S,  124,  149 

v.  Sheets.  64  Ind.  209,  61 

v.  St.   Johnsburg,  etc.,  Co.,  32 

Fed.  Rep.  5° 

Batten  v.  State,  80  Ind.  394,        669,  703 

Batterson  v.  Chicago,  etc.,  Co.,  49 

Mich.  [84,  587 

Batterton  v.  Chiles,  12  B.  Monr.  348,599 
Battishill  v.  Humphrey,   64  Mich. 

Baughan  v.  Baughan,  114  Ind.  73,     293 

Baughman  v.  Calveras,  72  Cal.  572,460 

Bayard  v.  Lombard, 9  I  low.  530.  1 1 1.  272 

v.  United  States,  127  (J.  S.  246,  440 

Bayless  v.  Daniels,  S  Tex.  140,  487 

*  v.  Glenn,  72  Ind.  5,        295,  725.  752 

Bays  v.  Hunt.  60  la.  251,  536 

Bazzo  v.  Wallace.  [6  Neb.  293,  324 

Beach  v.  Packard,  10  N't.  96,       273,  666 

v.  Zimmerman,  [06  Ind.  495.      6S2 

Bi  agles  v.  Sefton,  7  Ind.  490,      536,  568 

B   aird  v.  United  States,  5  Ind.  220,392 


393' 


458 

271 

592 

394 
789 

■79 


-ss 


41 


Beal  v.  Chase,  31  Mich.  490, 

v.  Harrington,  116  111.  113 

v.  Ray.  17  Ind.  55  |. 

v.  State,  77  Ind.  231, 

v.  Stone.  22   la.  447, 
Beals  v.  Beals,  20  Ind.  [63, 

v.  Beals,  27  I  nd.  77. 
Beard  v.  First    National   Bank, 
Minn.  153, 

v.  First  Presbyterian  Church 
15  Ind.  490, 

v.  Hand,  SS  Ind.  183, 

v.  Lofton,   [02  Ind.  408, 

v.  Sloan,  38  Ind.  12S, 

v.  Stat  •,  54  Ind.  1  [3, 

v.  State,  57    Ind.  8, 
Beardsley  v.  Frame,  73  Cal.  634, 
Beatty  v.Beatty  (Ky.),  5  S.W.  Rep 

77 '• 

\ .  Benton,  [35  I  ,  S.  244. 

v.  Brown,  85  Va.  685, 

v.  O'Connor.  106  Ind.  81,  282.  774 
Beauchamp  v.  State,  6  Blackf.  299.  527 
Bi  lulieu  v.  Parsons.  2  Minn.  37,  535 
Beaver  v.  Taylor,  93  U.  S  74° 


656 


229 

ir'3 
703 
57' 
256,  768 
254,  288 
is-6 


71 

i7 

402 


Beavers  v.  State,  58  Ind.  530,    159,   17S, 

7"1-  775 

Beck  v.  State,  72  Ind.  250,    1 24,  1 54,  246, 

34S.  443.  768 

1  v.  Lamont,  13  How.  Pr.  23,  634 

Becknell  v.  Becknell,  no  Ind.  42,       86, 

10S,  274.  294.  395,  725 

Beckner  v.   Riverside,  etc.,  Co.,  65 

Ind.  468,  638 

Beckwith,  In  re,  87  N.  Y.  503,  115 

Bedford,  etc.,  v.  Rainbolt,  99  Ind. 

551,  3°°>  345»  57i.  786 

Bedgood  v.  State,  115  Ind.  275,  700,  703 
Beeber  v.  Bevan,  80  Ind.  31,  1S1 

Beech  v.  Abbott,  6  Vt.  672 

Beeks  v.  Odom,  70  Tex.  183,  621 

Beeler  v.  Hontsch,  5  Blackf.  594,  665 
Beeman  v.  Banta,  113  N.  Y.  615,  307 
Beer  v.  Creditors,  12  La.  Ann.  774,  11S 
Beeson  v.  Howard.  44  Ind.  413,  635 

Beeswing,  The,  10  L.  R.  P.  D.  iS,  355 
Begein  v.  Brehm,  123  Ind.  160,  480 

Beggs  v.  State,  122  Ind.  54,        245,  246, 

253.  292 
Beguhl  v.  Swan,  39  Cal.  411,  437 

Behrens  v.  Behrens,47  Ohio  St.  323,  746 
Behymer  v.  State.  95  Ind.  140,  747 

Beigh  v.  Stnarr.  62  ind.  400,  446,  447 
Beineke  v.  Wurgler,  77  Ind.  46S,  268 
Beitman  v.  Hopkins,  109  Ind.  177,  756 
1  Selden  v.  Nicola v,   4  E.  D.  Smith, 

14,  6l3 

Belew  v.  Jones,  56  Miss.  ^)2,  20 

Belk  v.  Meagher,  104  U.  S.  279,        391 

Belknap  v.  Sealey,  14  N.  Y.  143,        550 

Bell  v.  Anderson,  74  Wis.  638,  120 

v.  Bumstead,  14  N.Y.  Supp.697,  733 

v.  Carley,  3  Ind.  577,  619 

v.  Cox,  "122  Ind.  153,  603 

v.  Davis,  1  Cal.  134,  673 

v.  Dix,  49  Ind.  232,  72 

v.  Golding,  27  Ind.  173,  475 

v.  Hungate,  13  Ind.  382,  63S 

v.  Keete,  12  La.  Ann.  340,  704 

v.  Kendall(Ala.),8So.  Rep. 492,  739 

v.  Mansfield  (Ky.,  13  S.W.  Rep. 

S38,  293 

*  v.  Mousset,  71  Ind.  347,  219 

v.  State,  42  Ind.  335,  231,  679 

v.  Rinker,  29  Ind.  267,  769 

v.  Trotter,  4  Blackf.  12,  392 

Belleau  v.  Thompson,  ^  Cal.  495,    39S 

Bellefontaine,  etc.,  Co.  v.  Hunter, 

33  Ind.  335,  5io,555,6i3 

Bellegrade  v.  San  Francisco  Bridge 

Co.,  So  Cal.  61, 
Belt  v.  Davis,  1  Cal.  134, 
Bell  R.  Co.  v.  Mann.  107  Ind 


Belton  v.  Smith.  45  Ind.  291, 


109,  449 

7o,  73 
'9,  5°2, 
565,  606 
129,  248 


TABLE  OF  CASES. 


XXXlll 


{References  a 

Belvin  v.  Richmond,  85  Va.  574,  7 

Bemes  v.  Jennings,  46  Vt.  45,  677 

Bender  v.  Sherwood,  21  Ind.  167         52 

v.  State,  26  Intl.  285,  397,  637 

v.  W ampler,  84  Ind.  172,     124,  154, 

222,  225,   T,<>n,  443,  774 
Benedict  v.  Bray,  2  Cal.  251,  306 

v.  Fallow,  1  Ind.  App.  160,  59 

Beneiiel  v.  Aughe,  93  Ind.  401,     75,  295 
Benhold  v.  Fox,  21  Minn.  51,  180 

Benjamin    v.    Elmira,   etc.,  Co.,  49 

Barb.  441,  4S9 

Bennett  v.  Abbett,  51  Ind.  252,  67^ 

v.  Allcott,  2  T.  R.  166,  588 

v.  Bennett,  102  Ind.  86,  219,  222,  225 
v.  Keehn,  67  Wis.  154,  100 

v.  Mattingly,  no  Ind.  197,   108,  596 
v.  Mclntyre,  121  Ind.  231,  588 

v.  State,  22  Ind.  147,  374 

v.  Syndicate  Ins.  Co. ,43  Minn. 

45-  639 

Bement  v.  Trenton,  etc.,  Co.,  3  Vr. 

(N.J.)  513,  102 

Benoit  v.  Schneider,  39  Ind.  591,       112, 

I42.  397 

Bensley  v.  Haeberle,  20  Mo.  App. 

648,  225 

Benson  v.  Adams,  69  Ind.  353,    101,   102 

v.  Baldwin,  10S  Ind.  106,  757 

v.Christian  (Ind.),   16,  29,  124,  149, 

619 

v.  Mahoney,  6  Baxt.  304,  534 

v.  State,  119  Ind.  4SS,  255,  266 

Bent  v.  Maupin,  86  Ky.  271,  683 

Bentley  v.  Coyne,  4  Wall.  509,  451 

v.  Dunkle,  57  Ind.  374,  199 

Bepley  v.  State,  4  Ind.  264,  301 

Beresch  v.  State,  13  Ind.  434,  619 

BerghofF  v.  McDonald,  S7  Ind.  549,   120, 

172,  271,  511,  718,  7S6 

Bergis  v.  Farrar,  45  Ind.  41,  757 

Berkey,   etc.,   Co.   v.    Ilascall,    123 

Ind.  502,  293,  751 

Berkley  v.  Kober,  13  Mo.  App.  502,  767 
v.  Tapp,  87  Ind.  25,  6S7 

Berks  County  v.  Jones,  21   Pa.  St. 

413- 

v.  Pile,  18  Pa.  St.  493, 
Berkshire  v.  Young,  45  Ind.  461, 


v.  Shultz,  25  Ind.  $22,, 
Berlin  v.  Oglesbee,  6^  Ind.  30S, 

767. 
Berly  v.  Taylor.  5  Hill,  577. 
Bernhamer  v.  State.  123  Ind.  577, 
Bernhard  v.  Brown.  31  111.  3S5, 
Berry  v.  Berry,  22  Ind.  275,         83, 

v.  Grevel,  n  la.  135. 

v.  State,  10  Ga.  511, 
Bertrand  v.  Taylor,  32  Ark.  470, 


192 
192 

285, 
72S 
604 

763. 

7S6 

587 

465 

2nS 

s9 

623 
615 


re  to  Pages. ,] 

Bertelson  v.  Bower,  Si  Ind.  512. 
Bessette  v.  Slate,   lOl    I  ml.  85, 
Bethell  v.  Bethell,  92  Ind.  318,  420, 

v.  Mathews,  13  Wall.  1, 

v.  McCool,  46  Ind.  303, 
Betson  v.  State.  47  Ind.  54, 
Betts  v.  Dimon,  3  Conn.  107, 

v.  Quick,  1 14  Ind.  [65, 

v.  State.  66  Ga.  508, 
Bevan  v.  Hayden,  13  la.  122, 

v.  Tomlinson,  25  Ind.  253, 
Bever  v.  North,  107  Ind.  544, 
Bewley  v.  Graves,  17  Ore.  274, 
Beyer  v.  Soper,  etc.,  Co..  76  Wis.  14, 
Bibb  v.  Reid.  3  Ala.  88, 
Bibbler  v.  Walker,  09  Ind.  362, 
Bice  v.  Hall,  120  111.  597, 
Bickett  v.  Garner,  31  Ohio  St.  28, 

Biddison  v.  Moseley.  57  Md.  89, 
Bidinger  v.  Bishop.  76  Ind.  244, 
Bidwell  v.  Astor    Mutual  Ins.  Co., 

16  N.  Y.  263, 
Biemel  v.  State.  71  Wis.  444, 
Bienenteld  v.  Fresno  Milling  Co., 

82  Cal.  425. 
Bierly  v.  Harrison,  123  Ind.  516, 
Bigelow,  Ex  parte,  113  U.  S.  328. 

v.  Doolittle,  36  Wis.  115, 

v.  Sickles    (Wis.),    49    N.    W. 
Rep.  196. 
Bigler  v.  Waller,  12  Wall.  142, 
Biggs,  Ex  parte,  64  N.  C.  202, 
Billups  v.  Daggs,  38  Mo.  App.  367, 
Bilyea  v.  Smith,  18  Ore.  335, 
Binford  v.  Minor,  101  Ind.  147,   167, 
Bingham,  In  re,  127  N.  Y.  296. 

v.  Brumback,  24  111.  App.  332. 

v.  Cabot,  3  Dall.  19.  273, 

v.  Stage,  123  Ind.  281,  216, 

526,  527.  585,  685, 

v.  Stumph.  48  Ind.  97. 

v.  Walk.  128  Ind.  [64, 
Binney  v.  Chesapeake,  etc.,  Co.,  8 

Pet.  214, 
Binns  v.  State,  66  Ind.  428, 
Birch  v.  Frantz,  77  Ind.  199, 
Bird  v.  Dansdale,  2  Binn.  So, 

v.  Lanius.  7  Ind.  615, 

69 


50S, 


546, 

-  693 
Birmingham,  etc.,   Co.  v.   Wildes, 

85  Ala.  593. 
Bisel  v.  Tucker,  121  Ind.  249.       52 
Bissel  v.  Drake.  19  Johns.  66, 
Bish  v.  Van  Cannon,  94  Ind.  263, 
Bishop  v.  Carter.  29  la.  165, 
v.  Cook.  13  Barb.  326, 
v.  Empire,  etc..   Co.,   1   J.  &  S. 
(X.  V.)  .7. 

v.  Moorman.  98  Ind.  1,     90, 


74S 
622 
640 
273 
599 
729 
9 
2SS 

53S 
691 
4S0 

5-o 
402 
5S1 

53i 

43 

44 

49", 

497 

^5 
;62 


4-2 
612 


75S 

504 

483 

739 

2  12 

7 

661 

452 
666 
630 

445 
477 
416, 
746 
769 
730 

4S2 
661 
282 
750 

>97. 
694 

675 

,SS 

''97 
(,44 
411 
321 

9i 
;9o 


XXXI V 


TABLE  OF  CASKS. 


/['  i.  , ,  ,■:■ ,  s   ire  to  /' 


676 
630 


256 
43 


Bishop  v.  Morris,  22  111    App. 
\    Redmond,  8}  I nd.  1  57, 
\    Silver  Lake,  1  tc.,  Co.,  62  N. 
11    1.55, 

State  (Ark.),  14  S.  W.  Rep. 
88, 

\ .  Village  of  Goshen,  120  N.Y. 

337, 

v.  \\  elch,  54  [nd.  ^,27, 
Bispham  v.  [nskeep,  1   Coxe,  231, 
Bissell  v.Jeffersom  ill.-.  2  \  How'.  287,  285 

v.  Wert,  35  I n,!.  5  (.,  199 

Bissol  v.  State.  53  1ml.  408.  791 

Bitting  v.  Ten  Eyck,  82  [nd.  421,      469 
Bittinger  v.  Bell,  65  [nd.  445.  596 

r  v.  Wagar,  83  Mich.  225.  639,654 
Bixbv  v.  State.    [5   Ark.    ;  791 

1  v.  Bixel,  107  1ml.  534,         215,  72  } 
Bixlie  v.  Wood.  2 1  N.  V.  007.  587 

Black  v. Camden, etc.,  Co., 45  Barb. 

4". 

v.  Coan.  48  Ind.  385, 

v.  Daggy,  13  [nd.  383, 

v.  Peters,  64  Ga.  628, 

v.  Shaw.  20  Cal.  68, 

v.  State.  58  [nd.  589, 

v.  Thomson,  107  Ind.  162,    419, 


6.55 

665 

96 

i  l1 
30S 

5 '7. 
5-° 
4i3 
75' 


v.  Washington,  65  Miss.  60, 

v.  Winterstein,  6  Neb.  22^, 

Blackberry    v.   People,    10    111.    (5 

Gilm.)  266,  437 

Blackburn  v.   Blackburn  (Ky.),  11 
S.  W.  Rep.  712,  640 

v.  Crowder,  no  Ind.  127,     334,  791 
v.  Selma,  etc.,  Co.,  2  Flippin, 
525, 

Blacker  v.  Slown,   I  14  Ind.  322,  579,  70S 

I ;.   cketer  v.  House,  67  Ind.  414,  691,743 
Blackledge  v.  Benedick,  12  I  ml.  389,  [93 

I  Hai  klock  v.  Small.  127  I  ,  S,  ■  16,  y  10 
.well  v.  Smith,  8  Mo.  App.  43,  41  I 
v.  Stat.-     lex.).  [5   S.  W.  Rep. 

597  ,  57S 

\.  McCaine,  105  N.  C.  460,  66 

Blair  v.  Davi6,  9  Ind   236,  101,281,282, 

284 
v.  Hanna,  S7  [nd.  29S,  735 

v.  Kilpatrick,  |.o  I  ml.  312,  312 

v.  I  .anning,  ''t   1  ml.  (99,  471 

v.  Miller,  4  Dall.  21.    '  228 

v.  Shelby  Co.  Asso.,   2S    Ind. 
175.  597 

\  .  Smith,  1  14   [nd.  1  1  |,  2  1  q 

Blake  v.  Broughton,  107  N.  C.  220,  (155, 

D5g 
v.  Griswold,  [04  N.  Y.  613,  141 
v.  1  [edges,  1  1  tnd.  500,  572 

v.  Lyon,  75  N.  Y.  611,  326 

v.  Lyon,  etc.,  Co.,  75  N.Y.  611,  323 


Blake  v.  Powell,  2''  Kan.  320,     535.  537 

v.  Stewart.  29   I  ml.  3  t  S,  514 

Blanchard  v.  Bissell,  11  Ohio  St.  96,     35 

v.  Jones,  101   I  ml.  ;  \2,  577 

Bland  v.  State.  2  I  nd  7^2 

Blandin  v.  Silsby,  62  Vt.69,  (.90 

Blanton  v.  Carroll,  86  Va.  539,  607 

Blany  v.  Finley,  2  Blackf.  3  [8,  675 

Blasingame  v.  Blasingame,  24  Ind. 

86,  562 

Blaisdell  v.  Scally,  84  Mich.  149,  659 
Blatchford v.Newberry,  100IH.4S4,  471 
Blazinski  v.  Perkins,  77  Wis.  9,  619 
Blecker   v.  Schoff,  48   N.  W.  Rep. 

1079,  345 

Bledsoe  v.  Bledsoe  (Ky.),  1   S.  W. 

Rep.  10.  620 

v.  Irvin.  35  Ind.  293,  58S,  603 

v.  Nixon,  09  N.  C.  Si,  459 

v.  Rader,  30  [nd.  354,  397,  4°3 

Blessing  v.  Blair,  15  I  ml.  546,  563, 

Bliley  v.  Taylor,  84  Ga.  154,  62S 

Blinks  v.  State.  48  [nd.  172,  675 

Blizzard  v.  Applegate,  77  Ind.  516,  537, 

658,  690 

v.  Blizzard.  40  Ind.  344,        Iol,  764 

v.  Haves,  46  Ind.  166,  701 

v.  Phebus,  35  Ind.  2S4,  769 

v.  Riley,  S3  Ind.  300,     266.  713,  770 

Block  v.  Darling,  140  U.  S.  234,         740 

v.  Ebner,  54  Intl.  544,  162 

v.  State.  100  Ind.  3^7,  52S,  530 

Blodgett  v.  Morris.  14  N.  Y.  4S2,       603 

Blonheim  v.   Moore,  11  Md.  365,       338 

Bloomfield  Ry.  Co.  v.  Burress,  S2 

Ind.  S3,  681 

Bloomfield   v.    Ketcham,    5  N.  Y. 

Civ.  Pro.  Rep.  407  (S.  C.  95,  N. 

Y.  657), 

Bloomfield  R.  R.  Co.  v.  Van  Slike, 

107  I  ml.  4S0,  402, 

Blossom  v.  Milwaukee,  etc.,  Co.,  1 

Wall.  655, 
Blount  v.  Rick,  107  Ind.  23S,       404, 
Blumhardt  v.  Rohr,  70  Md.  32$,  677, 
v.  Rohr  (  Md.),  17  Atl.  Rep.  266, 
Blum  v.  Strong,  71  Tex.  321, 

v.  Whitworth,  66  Tex.  350, 
Board  v.  Armstrong.  91   Ind.  528, 
v.  Arnett,  [16  ]  nd.  478, 
v.  Benson,  ^3  Ind.  469,         162, 
\ .  Bond,  3  Col.  222, 
v.  Brown,  14  Ind.  191,  363,  453, 

v.  Bunting,  in  Ind.  143,  5S, 
v.  Center  Tp.,  105  Ind.  422,  i77> 
v.  Courtney,  105  Ind.  311,  647, 

v.  Dombke,  94  Ind.  72, 
v.  Embree,  7  Blackf.  461, 


189 
562 

"5 

747 
691 

69S 
4S6 
266 

507 
670 
76S 
182 

455. 
465 
479 
469 
668, 
669 
537 
755 


TABLE  OF  CASES. 


XXXV 


[References  are  to  Pages.] 


Board  v.  Eperson,  50  Ind.  275, 
v.  Fuller,  1  [8  End.  158, 
v.  Gorman,  19  Wall,  661, 
v.  Hall,  70  Ind.  469, 
v.  Hammond,  S3  Ind.  4.53, 
v.  Hand,  SS  Ind.   1S3, 
v.  Hicks,  2   Ind.  527, 
v.  Huff,  91  Ind.  ^^, 
V.  Jameson,  86  Ind.  154, 
v.Johnson,  127  Ind.  23S, 
v.  Karp,  90  Ind.  236, 
v.  Kimberlin,  10S  Ind.  449, 
v.  Kromer,  S  Ind.  446, 
v.  Legg,  9.3  Ind.  523. 


759 
5x3i  697 
334 
2S5.  470 
656 
70S 
43s<  591 
567 
597 
5°7 
77i 
736 
692 
691 
486 
670 
420 


13. 


v.  Legg,  no  Ind.  479, 

v.  Legg,  115  Ind.  544. 

v.  Leggett,  115  Ind.  544. 

v.  Logansport,    etc.,    Co 
Ind.  199, 

v.  Louisville,  etc.,  Co 
S.  221, 

v.  Markle,  46  Ind.  96, 

v.  Mayer,  10  Ind.  400, 

v.  Montgomery,  109  Ind.  69,       162, 
766,  767 

v.  Newman,  35  Ind.  10.   14,  159,  74S 

v.  Pearson,  120  Ind.  426,  293, 

5S1.  715 
v.  Perche,  40  La.  Ann.  201,  126 
v.  Pritchett,  85  Ind.  6S,  491 

v.  Reynolds,  44  Ind.  509,      566,  6S7 
v.  Shatter,  52  Ind.  171, 


90 
109  U. 

"5 
12,  87,  670 

4°3 


159,  161, 

164,  172 

766 

62 

21S.442 

59i 

59i 

E. 

93 


v.  Small,  61  Ind.  31S, 

v.  Smith,  40  Ind.  61, 

v.  Spitler,  13  Ind.  235, 

v.  State,  n  Ind.  20^, 

v.  State,  3S  Ind.  193, 

v.  Tichenor  (Ind.),  29  N 
Rep.  32, 
Boardman  v.  Griffin,  52  Ind.  101,  72^ 
Bodentha  v.  Goodrich,  3  Gray,  50S,  346 
Bodkin  v.  Merritt,  102  Ind.  293.  6SS,  749 
Bodman  v.  Lake  Fork,  etc.,  Co.,  132 

111.  439.  591 

Bogart,  In  re,  2  Sawy.  396.  12 

v.  Brown,  5  Pick.  18,  696 

v.  New  Albany,  1  Ind.  38.36,  45,  50 
Boggs  v.  Caldwell  County,  2S  Mo. 
586,  9N 

v.  State,  S  Ind.  463,  37,  2^0 

Bogle  v.  Gordon,  39  Kan.  31,  155 

Bohannon   v.    State,    14  Tex.  App. 

271.  251.252 

Bohr  v.  Neuenschwander,   120  Ind. 

449-  712 

Bohun    v.    Delessert,  2  Coop.  Ch. 

Cas.  Pt.  I.   21,  677 

Boil  v.  Simms,  60  Ind.  if>2,  404 

Boker  v.  Chapline,  12  la.  204,  667  | 


Bole  v.  Newberger,  Si   Ind.  274, 
Bolin  v.  Simmons,  Si  Ind.  92. 

289,  296 
Boling  v.  Howell,  93  Ind.  329,  122 
Bollinger   v.    Manning    (Cah),    21 

Pac.  Rep.  375, 
Bolster  v.  Catterlin,  10  Ind.  117,  393 
Bomar  v.  Asheville,  etc.,  Co.,  30  So. 

Car.  450, 
Bonahan  v.  Nebraska,  125  U.  S.692 
Bond  v.  Armstrong,  S8  Ind.  65, 
v.  Cutler,  7  Mass.  205, 
v.  Nave,  62  Ind.  505, 
v.  State,  23  Ohio  St.  349, 
v.  Wabash,  etc.,  Co.,  67  la.  712, 

Bonds  v.  Hickman,  29  Cal.  460, 
Bondurant  v. Watson,  103  U.  S.  281, 
Bonewitz  v.  Wygant,  75  Ind.  41, 

71S, 
Bonham  v.  Bishop,  23  So.  Car.  96, 

v.  Mills.  39  Ohio  St.  534, 
Bonnell  v.  Allen,  53  Ind.  130,     215, 
Bonner  v.  Glenn,  79  Tex.  531, 
Bonny  v.    Bonny   (Ky.),   9   S.    W. 

Rep.  404, 
Bonsall  v.  Isett,  14  la.  309,  147, 

Boody  v.  Watson,  64  N.  H.  162, 
Boogher  v.  Insurance  Co.,  103   U. 

S.  90, 
Booker   v.    Goldsborough,  44  Ind. 

490,  472,  609, 

Boone  v.  Hulsev,  71  Tex.  176, 

v.  Purnell,  2S  Md.  607,  657, 

Boor  v.  Lowrey,  103  Ind.  468, 
Boorum  v.  Ray,  72  Ind.  151,       ^88, 
Booth  v.  Commonwealth,   7    Met. 

285,  346. 

v.  Cottingham,  126  Ind.  431, 

Boots  v.  Griffiths,  97  Ind.  241,   171, 

624,  693, 

Borchus  v.  Huntington,  etc.,  Assn., 

97  Ind.  180,  736, 

Borden  v.  State,  6  Eng.  (Ark.)  519, 

Bordentown,  etc.,  v.  Flanagan,  41 

N.J.  L.i  15, 
Borgalthous  v.  Farmers   Ins.,  etc.. 
Co.,  36  la.  250,  1 12, 

Borland  v.  1  laven.  37  Fed.  Rep.  394, 
Borne  v.  Kansas  City,  51  Mo.  454, 
Bornheimer  v.  Baldwin,  42  Cal.  zj, 
Bosch  v.  Kassing,  64  la.  312. 
Bosley  v.  Ackelmire,  39  Ind.  386. 
v.  Chesapeake,  etc.,  Co.,  3  Gill. 
&  J.  450,  554, 

v.  Farquar,  2  Blackf.  61,      378, 
v.  National,  etc.,   Co.,   123    N. 
Y.  550.  73-- 


178 

27  . 

•  396 

p  '54 

.46 
,  590 

412 

,248 

736 

793 
732 

681 
4S8, 
7S4 
167 

134 
292, 

719 

12S 

525 
590 
638 

490 

2S4 

96 

68 1 

4S7 
661 

143 
603 

49^ 
187. 

i13 
580, 

700 

768 

147. 
284 

482 

126 
1 1 
76 

91 

671 
62 

57o 
632 

745 


XXXVI 


TABLE  OF  CASES. 


Reft  rences  are  to  Pages.] 

er  v,  Cramer.  18  Ind.  44,        7<r'-    Boxley  v.  Collins.  4  Blackf.  320, 


789 

in  v.  Hayner,  31  Cal.  107,    167.    (  [8 

v.  Tileston,  n  Mass.  1.67,  [92 

ell  v.  Boswell,  1 17  Ind.  599-    6,  93 

v.  Slate.  S  Ind.    [Sq.  6,    277 

a  irk.  Ex  parte,  1  Cow.  1  (.3,        435 

v.  Brinkerhoff,  106  U.  S.  3.   72,  499 

v.  Bryant,  1  13  [nd.  448.       217.   597 

•  orth  v.  Barker,  65  Ind.  595-       689 

Bothwell  v.  Millikan,  104  [nd.  162,   506 

.rf  v.  Wise  53  Ind.  32,  675 

Bottorffv.  Shelton,  7m  Ind.  98,  689 

Bouknight   v.   Brown.   16  So.  Car. 

155,  •  4"i  745 

Boulden  \ .  Estcy  <  KrganCo,  (Ala.), 

Rep.  283,  3°9 

Boutelle  v.  Westchester,  etc.,  Co.. 

51   Yt.  4,  168,  508 

len  \ .  Baiber,  101  N.  C.  612^      6i 

v.  Carolina,  etc..  Co.  (So. 

Car.).  1  5  S.  E.  Re)..  421,  545 

v.  Fox,  99  N.C.  127,  164 

v.  Pollard.  71    Ind.  177,  678 

\    Preston,  48  Ind.  367,  669 

v.  Reed,  34  Ind.  430,  317 

v.  Spears,  20  Ind.  140,  615 

v.  Swander,  121  Ind.  164.    250,  291, 

624,  <>|7.  668,  712.  716 

Bower-  v.  Bowers,  53  Ind.  430,  729 

\ .  Elwood,  ( -  I  ml.  234,  45 

v  .  Mayo,  32   Minn.  2  p.  537 

s     M,  Mutt,  5  Blackf.  231,  9S 

Bowlus  v.  Brier,  S7  Ind.  391,      266,  756 

Bowman  v.  Eppinger,  1  X.  Dak.  21,  643 

\.  Lewis,  km  l.  S.  22,  303 

\  .  Phillips,  17  Ind.  341,         401,  785 

v.  Simpson,  68  Ind.  220.  1  17 

Bowrell  v.  Zigler,  19  Ohio.  362,        504 

Boyce  v.  Aubuchon,  34  Mo.  App. 

621 
\    ( Iraham,  91  Ind.  420,       507.  7  |  5, 

759-  765>  :"" 

v.  Gumdy,  6  Pet.  777.  20S 

v.  Lake,  17  So.  Car.  4S1,  616 
Bovd  v.  Anderson,  102  Ind.  217,  732,  7S1 

v.  Brown,  120  Ind.  393,  643 

•    ^  ,1  Id  well.  95  End  5-'  1 

v.  P  -7  I 

\  .   Stab'.    17   <  .:i.    [94,  657 

den  v.  Williams,  <i2  \".  C.  546 
Boyer  v.  Berryman,  123  Ind.  451.      504 
Boyle  v.  <  24  111.  49, 

v.  People,  4  Col.   17*.. 
v.  State.  105  Ind.  289,  62  J 

ton  \ .  Foster,  7  Met.  (t ;. 
Boynton  \ ,  Sisson,  ;<>  Wis.  401.         52  1 

\  .  Simmon-.  72    I  nd.   593,  41S 

Bos  \.  Bennett,  i  II.  Bla<  ks.  432,        76 


Brace  v.  Black,  12^  111.  33. 

it  v.Griswold  (N.  Y.),  28  N, 
E.  Rep.  365, 
Bradbury  v.  Cony,  62  Me.  223, 
Braden  v.  Graves,  85  Ind.  92, 
v.  Leibenguth,  126  Ind.  336, 


292, 

71S 
33 

4S2 

529 

491 
150, 
276 
7i3 


v.  Lemmon,  127  Ind.  9, 

Bradford  v.  Higgins  (Neb.),  47  N. 

W.  Rep.  749,  69,     79 

v.  State,  1 5  Ind.  347,  531,   679 

Bradley,  Ex  parte.  48  I  ml.  548,    231,  7S3 

v.  Bank,  20  1ml.  52S,  635 

v.  Bearss,  4  Ind.  1S6,  86 

v.  Bradley,  45  I  ml.  '7.  680 

v.  Citv  0tTranktbrt.99Ind.417,  64S 

v.  Clark.  1  Cush.  293,  615 

v.  Cramer,  66  Wis.  207,  659 

v.  Gait,  5  Mackey,  317,  316 

v.  Michael.  1   Ind.  551,  59S 

v.  Palen,  7S  la.  120,  656 

v.  Rogers,  33  Kan.  120,  126 

v.  Root,  5  Paige, 632,  483 

v.  State,  '31  Ind.  492,  661 

v.  Thixton,  117  Ind.  255,      265,  364 

Bradshaw   v.  Callaghan,  S  Johns. 

558,  "7 

Bradstreet,  Ex  parte,  4  Pet.  102,  438,  756 
Bradway  v.  Waddell,  95  Ind.  170,     68q, 

755 
Bradwell  v.  Pittsburgh,  etc.,  Co., 

139  Pa.  St.  104, 
Brady,  In  re.  85  X.  V.  268, 
v.  Hall,  14  Ind.  317, 
v.  Block,  57  Ind.  417, 
v.  Mayor  oi   New  York,  22  J. 
&  S.  (.57, 
Bragg  v.  Bickford,  4  How.  Pr.  21, 
v.  Olson,  12S  111.  S40, 
v.  Wetzel.  5  Blackf.  95, 
Brainard  v.  Jones,  18  N.  Y.  35, 
Brakken  v. 'Minneapolis,  etc.,  Co., 

^9  Minn.  41, 
Bramblett  v.  McVey  (Ky.),  15  S. 

\V.  Rep.  49. 
Branch  v.  Faust,  115  Ind.  464, 
Branch  Rank,   etc.,"  v.  Moselcy,  19 

Ala.  222,  77° 

Brand  v.  Longstreet,   1   South  (N. 

J.),  325,  549 

v.  Whelan,  iS  111.  App.  186,        637 

Brandon  v.  Judah,  7  Ind.  545,  675 

v.  Whitney,  54  Ind.  5S7,  109 

Braneer  v.  Buttrick,  2S  Wis.  450,     325, 

780 
Branham  v.  Ft.  Wayne,  etc.,  Co.,  7 
Ind.  524,  64 


627 

5M 

58S 
601 

792 
635 
4i3 
603 

310 
539 

596 
396 


TABLE  OF  CASES. 


xxx  VI  i 


[References  a 
Branham  v.  Johnson,  62  Ind.  259,      115, 
140/142.  399 
v.  State,  11    Ind.  553,  254,  746 

Braintree   v.   Southworth,  4  Gray, 

304,  604 

Brannon  v.  Hay,  42  Ind.  92,  7S0 

Bransford  v.  Kara  (Va.),  12  S.  E. 

Rep.  404,  648 

Brant  v.  Gallup,  117  111.  640,  467 

Bratton  v.  Bratton,  79  Ind.  588,  299 
Brasher  v.  Van  Cortland,  2  Johns. 

Ch.  242,  604 

Brassfield   v.  Burgess  (Kv.),   10  S. 

W.  Rep.  122,  673 

Bray  v.  Black,  57  Ind.  417,  599 

v.  Franklin  Co.,  60  Ind.  6,  36S, 

37°.  446 
v.  Laird,  44  Ala.  295,  71 

Braydon  v.  Goulman,  1  T.  B.  Mon. 

"5>  535 

Brazil  v.  Peterson,  44  Minn.  212,  792 
Brazil,  Town  of,  v.  Kress,  55  Ind.  14,  393 
Brauns  v.  Sterns,  1  Ore.  367,  521,  522 
Braunsdorf  v.  Felner,  69  Wis.  334,  638 
Breckley  v.  Weghorn,  71  Ind.  497,  292 
Breden  v.  State,  S8  Ala.  20.  '     679 

Breeding  v.  Shinn,  S  Ind.  125,  10S 

v.  Shinn,  11  Ind.  547,  105,  263 

Breedlove  v.  Bundy,  96  Ind.  319,  535 
Breese  v.  Allen,  12  Ind.  426,  632 

v.  State,  12  Ohio  St.  146,  195 

Brehm  v.  State,  90  Ind.  140,  771 

Breidert  v.  Krueger,  76  Ind.  55,  45,  444 
Bremmerman  v.  Jennings,  101  Ind. 

253>  567 

Brenner  v.  Bigelow.  S  Kan.  496,         724 

v.  Chapman,  11  Kan.  11S,  633 

v.  Quick,  SS  Ind.  546,  154 

Brewington  v.  Lowe,  1  Ind.  21,  1S6,  217 

Brewster   v.   Baxter,  2   Wash.  Ty. 

135-  260 

v.  Shelton.  24  Conn.  140,  225 

v.  Wakefield,  22  How.  118,  119,  132 

Brickley  v.  Weghorn,  71  Ind.  497,    71S, 

774.  7S5 
Brickman  v.  South  Carolina  R.  Co., 

8  So.  Car.  173,  523 

Bright  v.  Hutton,  12   Eng.  L.  &  E. 

*5.     „  474 

v.  State,  90  Ind.  343,  40S,  680 

Brighton  v.  White,  12S   Ind.  in,  32 

Briggs  v.  Barker,  145  Mass.  2S7,        224 
v.  Gleason,  27  Vt.  114,  791 

v.  Sneghan,  45  Ind.  14,  2S6 

Bridgman  v.  Dambly.  41  Minn.  526,  520 
Brink  v.  Reid,  122  Iiul.  2^7.  411 

Brinkmayerv.  Helblirig,  57  Ind.  43^,  736 


re  to  Pages, ,] 
Bristol,  etc.,  Co.  v.  Boyer,  67  Ind. 

-'.?»••  567 

Bristor  v.  Galvin,  62  Ind.  3^2,    28.' 
British   Bark   Latona  v.  McAlep,  3 

Wash.  Ty.  ^^2,  146 

Britton  v.  Phillips, 24 How.  Pr.  m,  j.97 

Brobst  v.  Brobst,  2   Wall.  .,1.,  324 

v.  Brock,  10  Wall.  519,         571,  573 

Brock  v.  State,  S5  Ind.  397,  774 

Brockett  v.  Brockett,  2  How.  23S,        98 

Broderick's  Will,  21   Wall.  503,  11 

Brooke  v.  Logan,  112  Ind.  1S3,  88 

Broker  v.  Scobey,  56  Ind.  5S8,  ^72 

v.  Weber,  41  Ind.  426,  629,  7S9 

Brookman  v.  Hamill.  43  N.  Y.  554,  414 

Brookover  v.  Forst,  31  Ind.  255,  150.  276 

Brooks  v.  Allen,  62  Ind.  401,       147,  284 

v.  Doxey,  72  Ind.  327,  113,  114, 

123,  361,  443 

v.  Dutcher,  22  Neb.  644,  568 

v.  Harris,  41  Ind.  390,  334 

v.  Harris,  42  Ind.  177,  470 

v.  Norris,  11  How.  204,         104,  3^0 

v.  Perry,  23  Ark.  32,  534 

Brookville  v.  Gagle,  73  Ind.  117,  36 

Brookville,    etc.,    Turnpike   Co.  v. 

McCarty,  8  Ind.  392,  592 

Broom,  Succession  of,  14  La.  Ann. 

67»  47o 

Bronenberg  v.  Board.  41  Ind.  502,       86 
Bronson  v.  La  Crosse,  etc.,  Co.,  1 
Wall.  405,  456 

v.  Railroad  Co.,  2  Black,  524,       73 
Brooster  v.  State,  15  Ind.  190,  572 

Brotherton  v.  Weathersby  (Tex.), 

11  S.  W.  Rep.  505,  692 

Brouse  v.  Price,  20  Ind.  216,  7^S 

Browder  v.  McArthur,  7  Wheat.  58,  468 
Brower  v.  Goodyer,  S8  Ind.  572,  622 
Brown,  Ex  parte,  116  U.  S.  401,  435 

v.  Anderson,  90  Ind.  93,       420,  670 
v.  Brown.  7   Mo.  28S,  7 <  >  ^ 

v.  Brown,  29  W.  Va.  777,  391 

v.  Buzan,  24  Ind.  194,  37S 

v.  Caldwell.  10  S.  &.  R.  114,        273 
v.  Carraway,  47  Miss.  66S,  20 

v.  Clarke,  4  How.  4,  761 

v.  Colie,  1  E.  D.  Smith,  265,       521 
v.  Critchell,  no  Ind.  31,  604 

v.  Desmond,  100  Mass.  267,        420 
v.  Driggers,  60  Ga.  114,  551 

v.  Eaton,  98  Ind.  591,  704 

v.  Edgerton,  14  Neb.  453,  71 

v.  Evans,  34  Barb.  594,  143 

v.  Freed,  43  Ind.  253.  525 

v.  Gill.  49  Ga.  5  (v,  077 

v.  Goble,  i)7  tnd.  86,       90,  2S4,  422 
v.  Grove,  115  [nd.  84,  217.  7>)2 

v.  Hall,  85  Va.  146,  7'  ; 

v.  Hazard,  2  Wash.  Ty.  464,        261 


XXXV111 


TABLE  OF  CASES. 


/.'•  ft  it  in  es  a 

Brown  v.  Hillegas,  2  Hill,  447,  71  I 

v.  Home  Savings  Bank,  5  Mo. 


412 

19.  475 
707 

7°.  45 : 
612 

655 
646 

5.35 
269 


A  pp.  1. 
v.  Jones,  1 13  Ind.  46, 
v.  [ones,  125  1  ml.  375, 
v.  ECeyser,  53  Ind.  85, 
v.  Klock,  117  N .  Y.  340, 
v.  Klock.  52  I  [un.  613, 
\ .  Lav  ler,  21  Minn.  327, 
v.  Marshall,  120  Ind.  323, 
v.  Miner,  [28  111.  [48, 
v.     Minneapolis,    etc.,    Co.,    25 

Minn.  461,  411 

v.  Mott,  22  Ohio  St.  149,  194 

v.  No-el,  21   Minn.  415,  640 

v.  Nichols,  etc.,Co.,  [23  Ind. 492, 216 
v.  Osborn,  1  Blackf.  32,  182 

\ .  (  )wen,  94  Ind.  31,      537,  610,  677 
y.  Rhodes,   I    Kan.  359,  757 

v.  Rice,  jo  Neb.  236,  633 

v.  Russell  &  Co.,  105  Ind.46,  32,532 
v.  Searle,  104  Ind.  2  [S,  403 

v.  Smith,  24  111.  196,  524 

v.  Southern,  etc.,  Co.  (Utah), 


26  Pac.  Rep.  579,  639 

\  .  Stale,   5  Eng.  607,  674 

v.  State,  82  Ga.  224,  373 

v.  State.  70  Ind.  .^76,  578 

V.  State,  103  Inch  133,  622 

v.  State,  105  Ind.  3S5,  253 

v.  State,  105  Ind.  494,  577 

v.  State,  in  Ind.  441,  239 

V.  Stale.  60  Miss.  447,  528 

v.  Stead.  5  Sims.  535,  596 
\.  Union  Hank.  4  Mow.  465,        499 

\ .  Webber,  6  Cush.  560,  633 

v.  Wyncoop,  2  Blackf.  230,  598 

l'.r.M  les  v.  State,  47  Ind.  251,  509 
Brownfield  v.  Hughes,  128  Pa.  St. 

194,  643 

v.  Weicht,  9  Ind.  394,  420,  670 

Brow  ning  v.  Hight,  78  End.  257.  680,  699 

\.  McCracken,  97  End.  279,        219, 

225,  226,  227 

\ .  Wheeler,  2  1  Wend.  258,  648 

Brow  n lee  v.  Goldthait,  73  Ind.  481,  711 

v.  Hare,  64  End.  jii,     271,683,  726 

\ .  Kenneipp,  4  t  1  nd.  2  [6,  7N8 

Brow  n  County  v.  Winona, etc.,  Co., 

38  Minn.  397,  436 

v.  Manchester,  etc.,  Co.,  117 

1      S.  514,  5°.     51 

v.  Schuyler,  4  Gilm.  221,       58,  479 

v.  Smith,  4  1  Ind.  1,  129 

v.  State,     7  [nd    150,  256,  765 

v.  Tyler,  1 2-  End.  ,■  199 

Bramfield  v.  Drook,  toi   End.  190,     604 

Brunner  v.  Brunner,  19  Ind.  98,         370 

Brush  Electric  Co.,  Appeal  of,  1  1  1 

Pa.  St.  574,  590 


re  to  Pages.] 

Bryan  \.  Bryan,  8  Cal.  130, 
\ .  Scholl,  109  Ind.  367, 

V.   State,    1    la.  3  (9, 

Bryant  v.  Bryant,  4  Abb.  Pr.  N.  S. 
138. 

v.  Crosby,  40  Me.  9, 
v.  People,  71  111.  32, 
v.  Rich,  106  Mass.  1S0, 
v.  Richardson,  126  Ind.  145, 
V.  State.  106  Ind.  549, 
Bryorly  V.  Clark,  48  Tex.  345, 
Buch  v.  Hughes,  127  End.  46, 
Buchanan    v.    Berkshire    Life    Ins. 
Co.,  96  Ind.  510,    81,  294,  401,  637, 
v.  Lee,  69  Ind.  1  17, 
v.  Logansport,  etc.,  Co.,  71  Ind. 
265,  334- 

v.  Milligan,  68  Ind.  118,      325, 
v.  Milligan,  108  Ind.  433,       19, 

v.  Milligan,  125  Ind.  332,    307, 
318, 
v.  State,  106  Ind.  251,  521, 

v.  Townsend   (Tex.),  16  S.  W. 
Rep.  315,  58l> 

Buchart  v.  Burger,  115  Ind.  123, 
Buck  V.  Havens,  40  Ind.  221, 
Buckey  v.  Stanley,  5  Blackf.  162, 
Buckingham,  In  re,  57  Conn.  541, 
Buckland  v.  Shepherd,  77  la.  329. 
Bucklin  v.  Strickler  (Neb.),  49  N. 

W.  Rep.  371, 
Buckman  v.  Whitney,  24  Cal.  267, 
Buckner  v.  Spaulding,  127  Ind.  229, 
Budd  v.  Power,  S  Mont.  380,      402, 
Buecher  v.  Casteen,  41  Kan.  141, 
Buell  v.  Sherman,  28  Ind.  464, 

v.  State,  69  Ind.  125,     241,  243, 
v.  State,  72  Ind.  523, 
Buffalo,  etc.,  Co.  v.  Delaware,  etc., 
Co.  (N.  Y.),  29  N.  E.  Rep.  121, 
v.  Phillips,  67  Wis.  129, 
Buffington  v.  Harvey,  95  U.  S.  99, 
Buford  v.  Gould,  35  S.  C.  265, 
Bugle  v.  Myers,  59  Ind.  73, 
Bulen  v.  Granger,  63  Mich.  311, 
Bulger  v.  Rosa.  1 19  N.  Y.  459, 
Bulkeley  v.  Butler,  2  U.  &  C.  434, 
Bulkley  v.  Morgan,  46  Conn.  393, 
Bull,  En  re,  14  Daly,  510, 
Bull's  Appeal,  2  1  Pa.  St.  286, 
Bull  v.  Coe,  77  Cal.  54, 

v.    Commonwealth,    14    C ir.il  t . 
613,  731. 

Buller  v.  Lenzee,  100  Mo.  95, 
Bullock  \.  Cook,  28  Mo.  App.222, 

Bulwinkle   v.  Cramer,  30  So.  Car. 
C53. 


456 

462 
770 

96 
691 

43° 

7- 
671 

409 

781 

5-7 

72S 
395 

463 
326 

•175, 
7"" 

3H> 

326 

567 

718 

75S 
179 

>-S 
112 


G33 
"'7 
758 
403 
673 
294 
246 
251 

593 

745 
-151 
555 
306 

619 

("m  3 
640 

589 

54r> 
260 
411 

743 

75 

454) 

5H 

73S 


TABLE  OF  CASES. 


xx  xix 


[References  are  to  Pages.) 


Bumpass  v.  Wc'ob,  4  Porter  (Ala.), 

Bunce  v.  Gallagher,  5  Blatchf.  4S1,    590 
Bundy    v.    Cunningham,    107    ind. 

36o,  73.  488<  595.  73S 

v.  Hyde,  50  N.  H.  116,  537 

v.  McClarnon,  11S  Ind.  165,       237, 

748 
v.  Ophir  Iron  Co.,  35  Ohio  St. 

356.  35s 


80, 


S. 


ss 
681 

619 

62 

293 


Hi 


v.  Pool,  82  Ind.  502, 
Bunker  v.  Rand,  19  Wis.  254, 
Bunn  v.  Croule,  10  Johns.  239, 
Bunnell  v.  Board,  124  Ind.  1, 

v.  Bunnell,  93  Ind.  595, 
Bunt  v.  Sierra,  etc.,  Co.,  13S  U 

4S3,  . 

Buntin  v.  Hooper,  59  Ind.  589,    92,  349, 

35 1 1  352,  45° 

v.  Rose,  16  Ind.  209,             624,  625 

v.  Weadle,  20  Ind.  449,  675 

Bunting  v.  Saltz,  S4  Cal.  16S,  453 

Burchard  v.  Cavins,  77  Tex.  365,  314 

Burckhalter  v.  Coward,  16  S.C.  435,  615 

Burckham  y.  Burk,  96  Ind.  270,  562 

Burbank  v.  Dyer,  54  Ind.  392,  277 

v.  Rivers,  20  Nev.  159.  94 

Burdick  v.  Hunt,  43  Ind.  3S1      769,  770 

Burgess  v.   Donoghue    (Mo.),  2  S. 

W.  Rep.  303,  456 

v.  Hitt,  21    Mo.  App.  313,  462 

Burgett  v.  Bothwell,  S6  Ind.  149,  34,  43, 

177 

v.  Burgett,  43  Ind.  7S,  690 

v.  Teal,  91  Ind.  260,  562 

Burgoyne  v.  Supervisors,  5  Cal.  9,         5 

Burlingame  v.  Central,  etc.,  Co.,  23 

Fed.  Rep.  706, 

Burlington,  etc.,  Co.  v.  Simmons, 

123  U.S.  52, 

v.  Stewart,  39  la.  267,  127, 

Burk  v.  Andis,  9S  Ind.  59,    520,  53S, 

v.  Avers,  19  Hun.  17, 

v.  Barnard,  4  Johns.  309, 

v.  Howard,  15  Ind.  219,       208,  31S, 

330,33!.  332 

v.  Simonson,  104  Ind.  173,    122,  154, 

361,  44S 

v.  State,  27  Ind.  442. 

Burke  v.  Cruger,  S  Tex.  66, 

v.  Lee.  76  Va.  3S6, 

v.  Pepper.  29  Neb. 320, 

v.  Pinnell,  93  Ind.  540, 

v.  St.  Paul,  35  Minn.  172, 

v.  State,  47  Ind.  52S,  247, 

Burkam  v.  McElfresh, 88  Ind.  223, 

162,  16S,  363,  511 
Burkham  v.  Beaver,  17  Ind.  367,        596 

744 


5Si 

6S 
415 

747 
112 
2S6 


231 

4S7 
64.3 
445 
677 
5 
276 

124 


v.  Burk,  96  Ind.  270. 


Burkhardt  v.  Gladish,  123  Ind.  337,  394, 

395.  396 
Burkett  v.  Holman,  ioq.Ind.6,  217,  393, 

394,  395 

Burleson  v.  Burleson,  15  Tex.  423,    483 

Burnett  v.  Abbott,  51  Ind.  254,   123,  443 

v.  Curry,  42  Ind.  272,  477,  489 

v.  Trustees,  50  Ind.  251,  435 

Burns  v.  Barenfield,  84  Ind.  43,  520 

v.  Fox,  113  Ind.  205,  521,  524 

v.  Harris,  66  Ind.  536,  700 

v.  Nash,  23  111.  App.  552,  13 

v.  Singer,  etc.,  Co.,  87  Ind.  541,   1 16 

v.  Webster,  16  Neb.  25S,  306 

Burnside  v.  Ennis,  43  Ind.  411,  180 

Burntrager  v.  McDonald,  34   Ind. 

277.  162,  766 

Burr  v.  Burr,  10  Paige,  166,        335,  462 

v.  Mendenhall,  49  Ind.  496,         520, 

521,  522, '525 

Burrall  v.  Vanderbilt,  1  Bosw.  643,  335, 

462 
v.  State,  28  N.  E.  Rep.  699,  665 

Burroughs  v.  Norton,  4S  How.  Pr. 

R.  152,  146 

Burrows  v.  Mickles,  22  Fla.  577,         129 
Burson  v.  National  Park  Bank,  40 

Ind.  173,  72 

Burt  v.  Panjand,  99  U.  S.  180,  57S 

v.  Hoettinger,  28  Ind.  214,  207,  209, 

213,  330,  7^9 
v.  Wigglesworth,  117  Mass.  302,  616 
v.  Reilly,  82  Mich.  251,  435 

Burton  v.  Burton,  12S  Ind.  342,    336,  461 
v.  Driggs,  20  Wall.  125,  731 

v.  Ferguson,  69  Ind.  4S6,  158 

v.  Reeds,  20  Ind.  87,  462 

v.  Wilkes,  66  N.  C.  604,  619 

v.  West  Jersey,  etc.,  Co.,   114 

U.S.  574.  *  746 

Burst  v.  State,  SS  Ind.  341,  247 

Busby  v.  Mitchell,  29  S.  C.  447,         490 

Buscher  v.  Knapp,  107  Ind.  340,         451 

v.  Scully,  107  Ind.  246,  623 

Buse  v.  Russell,  86  Mo.  209,  4S3 

Bush  v.  Bush,  46  Ind.  70,  630 

v.  Grover,  etc.,  Co.,  4S  Ind.  258,    268 

v.  Hanson,  70  111.  480,  12 

v.  Rochester  Bank,  \8  N.Y.659,  129 

v.  State  (Miss.),  6  So.  Rep. 647,     99 

Buscher  v.  Knapp,  107  Ind.  340,  :s7 

Bushnell   v.  Crooke,   etc.,   Co..    12 

Col.  217,  61S 

Butcher  v.  Bank,  2  Kan.  70,       421,  670 

v.  Taylor,  iS  Kan.  55S,  71 

Butler  v.  Church,  etc..  14  Bush,  540,  635 

v.  Glens  Falls,  etc..  Co..  121  N. 

Y.  112.  53° 

v.  Palmer,  1    Hill.  324,  "i 

v.  Roberts.  nS  Ind.  4S1,  771 


xl 


I  A.BLE  OF  CASES 


Ri  /,  rains  are  to  Pages.] 


Butler  v.  State,  97  [nd.378,       231, 
250,  252,  257,  4.15,  517. 

v.  Winona    Mill   Co.,  28  Minn. 
205, 
Butl  v.  Butt,  1 18  [nd.  31, 
Button  v.  Ferguson,  u  End.  314, 

v.  Fox.  39  [nd. 
Buzzell  v.  Snell,  25  N.  II.  474, 
Bybee  v.  State-.  94  ]  nd.  1.43, 
livers  v.  Hickman,  36  Ind.  359, 

v.  Rodabaugh,  17  la.  53, 

v.  Mate,  jo  [nd.  17, 
Byington     v.    Commissioners,    37 

Kan.  6c  |, 
Byne  v.  Smith,  76  Ga.  101, 
Byram  v.  Galbraith,  75  Ind.  134, 
Byrne  v.  Clark,  31  111.  A  pp.  651, 

v.  Prather,  14  La.  Ann.  653, 

v.  Reed,  75  Cal.  277, 


Caallot  v.  Deetken,  113  U.  S.  213, 
Cabell  v.  Vaughan,  1  Wm.  Saund- 
ers, 201  2,  291  k, 
Cade  v.  Hatcher,  72  Ga.  359, 
Cadman  v.  Markle,  76  Mich.  448, 
Cadv  v.  Milwaukee, etc.,  Co.,  5  Dak. 

97". 
Caffrey  v.  Dudgeon,  38  Ind.  512, 
Cage,  Ex  parte,^5  Cal. 248, 
Cain  v.  Goda,  94  Ind.  555,  90, 

Cairns  v.  O'Bleness,  40  Wis.  469, 
Cairo,  etc.,  Co.  v.  Easterly,  S9  111. 

[56, 
Calcrafl  v.  Gibbs,  5  T.  R.  19, 
Calder  v.  Smalley,  66  la.  219, 
Caldwell  v.  Bank  of  Salem,  20  Ind. 

2941 

v.  Boyd,  109  Ind.  447, 

v.  Bruggerman,  8  Minn.  286, 

v.  Colgate,  7  Barb.  2^3, 

v.  New    jersey,   etc.,  Co.,  47  N. 
Y.  2S2, 
Caldwill  v.  Gilmore,  So  Ind.  42S, 
Calev  v.  Morgan,  iij  Ind.  350, 
Call  v.  Byram,  39  [nd.  499, 

v.  Palmer,  to6  U.S.  39, 
Callaghan,  Estate  of,  60  Cal.  232, 

v.    Portland,   etc.,   Co.,    1 7   '< )re 

556, 
Callan  v.  Blai  k,  2  Black,  541, 

v.  Bransford,  ro  >>   E.  Rep.  317, 
v.  Ellison,  ;}  <  )hio  St.  |  l6, 
Calo  v.  Railroad  Co.,  30  S.  C.  608, 
Calumet     Iron,   etc.,  Co.    v.  Martin, 

115  111.  358, 

Calvert   v.  State,  91    Ind.  473,      256, 

261, 


248, 
530 

675 
506 

6SS 
53i 
6iS 
36S 
101 
646 
306 

271 
5iS 
78S 

754 
4r>3 
792 


92 

602 

537 
658 

4S4 
3°6. 
5X9 
124 

•Is'' 

769 

75° 
674 

63S 

71.3 
468, 

4S9 
414 

535 
76S 
^73 
7s  1 
389 
224 

<P 
73 
46 

285 
[09 

273 

257. 
759 


Calvo  v.  Railroad  (S.  C),  10  S.  E. 

Rep.  389, 
Camblos  v.  Butterfield,  15  Abb.  IV. 

(N.  S.)  197, 
Cambuston  v.  United  States,  95  U. 

S.  2S7, 
Camden  v.  Doremus,  3  How.  515, 
Camden,    etc.,    Co.  v.   Beknap,    21 

Wend.  354, 
Cameron  v.  Equitable,  etc.,  Co.,  13 

Jones  &  Sp.  628, 

v.  Hodges,  127  U.  S.  322, 
v.  W  hite.  74  Wis.  425, 
Camp  v.  Brown,  4S  Ind.  575, 


94 

97 

98 

730 


176 
41S 


655 

614,  6115, 

616 


v.  Smith,  117  N.  Y.  354,  216 

Campbell  v.  Allen,  61  Mo.  581,  159 

v.  Birch,  60  N.  Y.  214,  402 

v.  Board,  118  Ind.  119,  9 

v.  Campbell,  121  Ind.  178,  736 

v.  Campbell,  22  111.  664,  430 

v.  Coburn,  77  Cal.  36,  682 

v.  Coon,  61  Ind.  516,  401 

v.  Dooling,  26  Ark.  647,  673 

v.  Dutch,  36  Ind.  504,  163 

v.  Dwiggins,  83  Ind.  473,  14S 

v.  Frankem,  65  Ind.  591,  580 
v.  Hayes,  77  Cal.  36,             675,  682 

v.  Howard,  5  Mass.  376,  463 

v.  Hunt,  104  Ind.  210,  536 
v.  City  of  Kalamazoo,  80  Mich. 

655,  r"7 

v.  Kent,  3  P.  &  W.  72,  271 

v.  Maher,  105  Ind.  583,  622,  7S6 
v.  Mandeville,  no  N.Y.628,  46,  7S 
v.  Nebeker,  58  Ind.  446,  565 

v.  New    England    Ins.  Co.,  22 
Pick.  135, 

v.  Perkins,  8  N.  Y.  430, 
v.  Roberts,  66  Ga.  733, 
v.  Routt,  42  Ind.  410, 
v.  Stakes,  2  Wend.  137, 
v.  Swasey,  1 2  [nd.  70, 
Candy  v.  Hanmore,  76  Ind.  125, 
Canfield  v.  Erie,  21  Mich.  160, 
Cannon  v.  Pratt,  99  U.  S.  619, 
Caose  Bank  v.  Keene,  53  Me.  103, 
Cape  Garardeau,  etc.,  Co.  v.  Hat 

ton,  102  Mo.  45,  596 

Capital  Bank  v.  Armstrong, 62  Mo. 

59. 
Carey  v.  Brown,  92  U.  S.  171, 

v.  Butler,  1 1  Ind.  391, 
Cargar  v.  Fee,  119  Ind.  536, 


640 
587 
615 
39s-  635 
588 

633.  734 
69 

20S 
509 

577 


411 
601 
286 
291,  647, 
66S 


Carlisle  v.  Gaar,  iS  Ind.  177,  069 

v.  State,  32  Ind.  55,  27 

v.  Wilkinson,  72  Ind.  91,  514 

Carlow  v.  Aultman,  28  Neb.  672,  156 

Carlton  v.  Cummins,  51  Ind.  47S,  1S7 


TABLE  OF  CASES. 


A\  ferem  es  are  to  Pages.  \ 


Carman  v.  Pultz,  21   N.  Y.  547,  664 

Carmichael  v.  Adams,  91  Ind.  ^26,    17, 

32>  532 

v.  Browdcr,  3  How.  (  M  iss.)  252 

v.  Holloway,  9  Ind.  519, 

v.  Shiel,  21  End.  66, 

v.  Vandebur,  51  la.  525, 
Carmier  v.  Whitaker,  36  Ind.  509,    603 
Carnahan    v.   Chenoweth,    1    Ind. 

A  pp.  178, 
Carne  v.  Truman,  105  111.  321, 
Carnes  v.  Piatt,  15  Abb.  Pr.  (N.  S.) 

331. 

Carney  v.  Street,  41   Ind.  390, 
Carothers  v.  Wheeler,  1  Ore.  194, 
Carpenter's  Est.,  In  re,  79  Cal.  382,  612 
Carpenter  v.  Bristol  Co.,  21   Pick. 
25S,  515 

v.  County  Commissioners,   21 
Pick.  258,  433 

v.  Dame,  10  Ind.  125,  52S,  531 

v.  Galloway,  73  Ind.  41S,  7S6 

v.  Gardiner,  29  Cal.  160, 
v.  Reynolds,  58  Wis.  666, 
v.  Sigler,  47  Ind.  202, 


31 
3*5 
764 

458 


7S1 
16S 


700 
269 


479 
26S 


v.  State,  43  Ind.  371,     573,  662,  691 


Stillwell,  11  N.  Y.  61, 
v.  Vanscotten,  20  Ind.  50, 
v.  Wilmot,  24  Mo.  App.  5S9, 
Carpentier  v.  Thurst,  30  Cal.  123, 
Carper  v.  State,  27  Ohio  St.  572, 


691 
670 

547 
555 
252, 
681 

732 

299 
650 
7S8 
532 
704 
S23 
395 
419 


Carr  v.  Boone,  10S  Ind.  241, 

v.  Eaton,  42  Ind.  3S5, 

v.  Fife,  45  Fed.  Rep.  209, 

v.  Gale,  1  Curt.  C.  C.  3S4, 

v.  Haskett,  no  Ind.  152,      479, 

v.  Hays,  no  Ind.  40S, 

v.  Mo'ss,  S7  Mo.  447, 

v.  State,  Si  Ind.  342, 

v.  State,  103  Ind.  548, 

v.  State,  127  Ind.  204,  n  Law. 

Rep.  Ann.  370,  136,  305 

v.  Thomas,  34  Ind.  292,        766,  769 

v.  Townsend,  63  Pa.  St.  202,       140 

Carrick  v.  Lamar,  116  U.  S.  423,       435 

Carrico  v.  Tarwater,  103  Ind.  S6,       154 

Carriger  v.  Sicks,  73  Ind.  76,  637 

Carrington   v.  Pacific,  etc.,  Co.,  1 

Cal.  475,  577 

Carroll,  Will  of,  50  Wis.  437,  626 

Carroll  v.  Campbell,  25    Mo.  App. 

630,  4S1 

v.  Dorsey,  20  How.  204,  633 

v.  Little,  73  Wis.  52,  74=; 

v.  Peake,  2  Pet.  iS,  677 

v.  Williston,  44  Minn.  2S7,  747 

Carrollton  v.  Rhomberg,  7S  Mo.  547,  141 

Carrothers  v.  Carrothers,   107  Ind. 


Carrott  v.  Jacksonville,  2    111.  App. 
4S1,  325 

C  arm  t  hers  v.  Me  Murray,  75  la.  17  ;.  6t  | 
Carskadden  v.  Poorman,   10  W.  & 

S.  S2, 
Carson  v.  Henderson,  34  Kan.  404,    791 

v.  State,  80  Ga.   170,  252 

v.  Steamboat  Talma,  3  Ind.  194 
Carswell  v.  Crowther  (Tex.),  16  S. 

W.  Rep.  172,  444 

Cartaguino    v.   Belletta    (Cal.),    11 

Pac.  Rep.  1097,  490 

Carter  v.  Bennett,  4  Fla.  2S3,     702,  729 

v.  Carriger,  3  Yerg.  411,  140 

v.  Carter,  101  Ind.  450, 

v.  Ford,  etc.,  Co..  85  Ind 

v.  Pomeroy,  30  Ind.43S, 


622,  7S6 

1 So,     579 

509,  571. 

57- 

v.  Thorn,  iS  B.  Mon.613,  310 

Carthage,  etc.,  Co.  v.  Andrews,  102 


Ind.  13S, 
Cartwright  v.  Howe,  1  How.  iSS, 


4S6 
125, 

444 
679 

77' 


53°- 


172,  -M| 


v.  Yaw,  100  Ind.  119, 
Carver  v.  Carver,  44  Ind.  265, 

v.  Carver,  77  Ind.  49S,  306,  307 
v.  Carver,  83  Ind.  36S,  293,581,  718 
v.Carver, 97  Ind.  497,  187,  402,  411, 
4S0,  567,  643,  690,  7S1 
v.  Carver,  115  Ind.  539,  313,314, 
336,  339.  340 
v.  Detroit,  etc.,  Co.,  61  Mich. 

5S4,  643 

v.  Williams,  10  Ind.  267,  632 

Cary  v.  Hotaling,  1  Hill.  311,  54 

v:  Whitney,  4S  Me.  516,  127 

Casad  v.  Hodridge,  40  Ind.  529,  397,  637 

Case  v.  Colter,  66  Ind.  336,  582 

v.  Grim,  77  Ind.  565,  535 

v.  Johnson,  70  Ind.  31,  357 

v.  Kelly,  133  U.  S.  21,  120,560 

v.  Ribelin,  1  J.  J.  Marsh.  29,         140 

v.  State, 5  Ind.  1,  250 

v.  State,  69  Ind.  46,  592 

Case    Threshing    Machine    Co.   v. 

Haven,  65  la.  359,  561 

Casily  v.  State,  32  Ind,  62,  409 

Caskey  v.  City  of  Greensburgh,  78 

Ind. 233,  59° 

Casper  v.  State.  27  Ohio,  572,  2  \<> 

Cass  v.  Krimbill,  39  Ind.  357.  669 

Cassadav  v.  Detrick,  63  Ind.  485,      601 

v.  Magher,  85  Ind.  228,  572 

v.  Miller.  106  Ind.  69,  672 

Cassard  v.  Himmer,  6  Duer,  695, 

Cassel  v.  Case.  \\  Ind.  $93,  179 

v.  Cooke,  S  S.  &  R.  268,  57" 

Cassidy's    Succession,  40  La.  Ann. 

827,  7s 

493 


,  767    Cassidey,  In  re,  95  N.  C.  225, 


xlii 


TABLE  OF  CASES. 


619 

6 

5°9 
620 


References 

Castle  Dome,  etc..  Mining  Co.,  In 

re,  79  Cal.  246.  122 

Castleman  v.  Griffin,  13  Wis.  z,y^    658 
Castor  v.  Jones,  107  1ml.  2S3,  525 

Castrov.  United  States.  3  Wall.  40,   92, 

104 
Catterlin  v.  City  of  Frankfort,  S7 

1  ml.  45,  2S5,  531,  619 
Cates  v.Thayer,  93  1ml.  156,      289,  7S5 

v.  Winter,  3  T.  R.  306,  696 

Cauldwell    v.  Curry,  93  Ind.  363,     2S5, 

419,  64S 
Cavanaugh  v.  Buehler,  120  Pa.  St 

v.  Smith,  S4  Ind.3So, 
Cavazos  v.  Trevino,  6  Wall.  773, 
Caw  v.  People.  3  Neb.  357. 
Cecconi  v.  Rodden,  147  Mass.  164,  765 
Celina,  Matter  of,  7  La.  Ann.  162,  666 
Center  Tp.  v.  Board,  no  Ind.  579.  73, 
282,  489,  498 
Central  Bank  v.  St.  John,  17  Wis. 

'57-  6l5 

Central    R.    R.    Co.    v.    Bourbon 
County,  116  U.  S.  538.  3SS 

Central  Trust  Co.  v.  Grant  Loco- 
motive Works,  135  U.  S.  207,  79,   112 

Central    Union,  etc.,  Co.  v.    State, 
no  Ind.  203,  335,  462,  403,  774 

v.  Andrews,  34  Kan.  503,  330 

Centreville,    etc.,    Co.    v.   Barnett, 

2  Ind.  530, 
0  Gordo  v.  Wright  Co.,  59  la. 

-is5- 

Chaffee  v.    Mcintosh.  36  La.  Ann. 

824, 
I  hamberlain  v.  Applegate,  2  Hun. 
510, 

v.  Chamberlain,  116  111.  4S0, 
v.  Porter,  9  Minn.  260, 
v.  Reid,  49  Ind.  332, 


59° 


93 

338 
573 
663 

7SS 


Chambers  v.  Butcher,  82  Ind.  50S,  301, 


397: 


V.  Hoover,  3  Wash.  Tv.  20, 
v.  Kyle,  87  Ind.  83,  162, 

v.  Lewis,  1 1   Alb.  Pr.  206, 
v.  Lewis,  2  Hilt.  (N.  Y.)  591, 
v    M'  .int.  66  M  iss.  025. 
v.  Nicholson,  30  Ind.  349, 

Chamble  v.  Tribbling,  [6  S.  C.  165, 
run  v.  Portland,  [9  <  )re.  512, 

Chamlev  v.  Lord  Dunsaney,  2  Sri  if. 

Si    I  a  I.  69O,   710.  134 

Chamness  v.  Chamness,  53  Ind.  301,  698 
Champ  v.  Kendrick  (Ind.),  30  N.  E. 

Rep. ,  7S3 

Chance  v.  Indianapolis,  etc.,  Co.,  32 

Ind.  172.  619 

Chandler  v.  Nash,  5  Mich.  409,  7.  9 


767 

99 

571 
5S9 
5S7 
574 
596 
411 
3  "J 


are  to  Pages.] 

Chandler  v.  Von  Roeder,  24  How. 
224,  643,  700, 

Chaney  v.  Hughes,  13S  U.  S.  403, 
Chancy  v.  State,  11S  Ind.  494, 
Chapell  v.  Sluice.  117  Ind.  481,    13, 

420, 
Chapin  v.  Board.  21  Ind.  12, 

v.  Clapp.  29  Ind.  61 1, 
Chapize  v.  Bane,  1  Bibb,  612, 
Chaplin  v.  Commissioners  of  High- 
ways, 120  111.  264, 

v.  Sullivan.  1  28  I  ml.  50,  628,  718, 
Chapman  v.  Bank.  88  Cal.  419, 
V.  Barnes,  29  111.  App.  1S4, 
y.  Barney,  129  U.  S.  800, 
v.  Moore,  107  Ind.  223, 
v.  Morgan,  3  Gr.  (la.)  374, 
v.  Sutton, 68  Wis.  657,  126,  129, 
Charles    River    Bridge    v.   Warren 

Bridge,  11  Pet.  420. 
Charlestown    Sch.   Tp.  v.   Hay.  74 

Ind.  127, 
Chase  v.  Alley,  82  Md.  234, 

v.  Arctic  Ditchers,  43  Ind.  74, 
v.  Bates,  81  Me.  1S2, 
v.     Blackstone,    etc.,     Co.,     10 
Pick.  244, 

v.  Lee,  50  Mich.  237, 
v.  Scott.  33  la.  309, 
Chateau  v.  Rice,  1  Minn.  24. 
Chateauquay  Ore  cc  Iron  Co.,  Pe- 
titioners, 128  U.  S.  544,  436, 
Chateaugay,  etc.,  Co.  v.   Blake,  35 

Fed.  Rep.  S04, 
Chattanooga,  etc.,  Co.   v.  Jackson, 

S6  Ga.  670. 
Cheatam  V.  State,  67  Miss.  335, 
Check  v.  Glass,  3  Ind.  286, 
Cheeky.  City  of  Aurora,  92  Ind.  107 
V.  State,  35  Ind.  492,  619, 

v.  State,  37    Ind.  533.  255, 

Cheever  v.  Minton  (Col.),  21  Pac. 

Rep.  710. 
Cherry  Tp.   v.    Marion  Tp.,  96  Pa. 

St.  528, 
Chesapeake,  etc.,  Co.  v.  Barlow,  S6 
Tenn.  537. 

v.  Heath.  87    Ky.  651, 
v.  Higgins,  85   Tenn.  620, 
V.   Mackenzie     (Md.),    21     Atl. 
Rep.  690, 

v.  Path. 11.  9  W.  Va.  648, 
Chesround  v. Cunningham,  3  Blackf. 

82, 
Chesley  v.  Chesley,  37  N.  II.  229, 
Chester  v.  Bower.  ^5  Cal.  46, 
Chestnutt  v.  Pollard.  77  Tex.  S6, 

665 
Chicago,  etc.,  Co.  v.   Abilene,  etc., 
Co.,  42  Kan.  104, 


702 

454 
5-i 

070 
489 
580 
644 

29 

777 
447 
547 
392 
73S 
13 
350 


395 

643 

7S5 

94 

433 

700 

676 

73 

437 

3X4 

676 
6S0 
506 

i572 
7S7 
7s  1 

495 

91 

618 
6.33 

177 

734 
679 

599 
616 

53S 
464, 

,682 
124 


TABLE  OF  CASES. 


xliii 


Chicago,  etc.,  Co 
111.  9, 
v.  Barnes,  116  Ind.  126, 
v.  Bills,  104  Ind.  13, 
v.  Bosjys,  101  Ind.  ^22, 


[References  a 
Aldrich,   134 


679 
506 

587 

57o 
624,  70S 
7i 


v.  Burger,  124  Ind.  275. 
v.  Cameron,  120  111.  447, 
v.  Chamberlain,  S4  111.  t,^  286 

v.  Dev,  76  la.  27S,  124.   125 

v.  Dey,  41  N.  W.  Rep.  17.  14 

v.  Dunleary,  27  111.  App.  43S,  624 
v.  Fietsam,  123  111.  518,  623 

v.  Goyette,  t,2  111.  App.  574,  708 
v.  Greer,  9  Wall.  726,  509 

v.  Graney  (111.),  25  N.  E.  Rep. 
79S,  62S 

v.  Harper,  12S  111.  3S4,  770 

v.  Holland,  122  111.  461,  618 

v.  Hull,  24  Neb.  740,  492 

v.  Hunter,  128  Ind.  213,  521,  570 
v.  Johnson,  34  111.  App.  351,  756 
v.Jones,  103  Ind.  386,  521,  522 

v.  Linard,  94  Ind.  319,  598 

v.  Modesitt,  124  Ind.  212.  397 

v.  Nix  (111.),  27  N.  E.  Rep.  81,  729 
v.  Ostrander,  116  Ind.  259,    579,  707 


Peck,  112  111.  408, 
v.  Powell.  40  Ind.  37, 
v.  President,  etc.,  104  111.  91. 
v.  Snvder,  12S  111.  6^q,  ^46, 

v.  Sullivan  (111.),  17  N.  E.  Rep. 


v.  Summers,  113  Ind.  10,     265, 


v.  Watson,  105  111.  217, 
v.  Whitton,  13  Wall.  270, 
v.  Wilcox  (III),  24  N.  E. 

4J9. 

v.  Yando,  127  111.  214. 

Chicago.  City  of,  v.  Wood, 
App.  40, 


56 
57i 
208 

547 

460,  623 

364, 
566 
'  33 
574 
Rep. 

661 
164,  34S 

4  111. 

637 

Chicester  v.  Cande.  3  Cow.  59,  178 

Chickering  v.  Failes,  29  111.  294,  493 

Child  v.  Swain.  69  Ind.  230,        520,  521 

Childress  v.  Callender,  108  Ind.  394,  747 

Chisham  v.  Way,  73  Ind.  362,  511 

Chissom  v.  Barbour,  100  Ind.  1,   17S,  181 

v.  Lamcool,  9  Ind.  530,  54 

Chittenden  v.  Brewster,  2  Wall.  191.  |s^ 

Chouteau  v.  Allen.  74  Mo.  ;(..  499 

v.Jupiter   Iron  Works.  94  Mo. 

388, 

Chrisman  v.  Melne,  6  Ind.  4S7. 

Christian  v.  Atlantic,  etc.,  Co.,  133 

U.  S.  233.  596 

v.  O'Neal,  46  Miss.  669.  147 

v.  Lebeschultz.  18  S.  C.  602.  681 

v.  State  (Ga.).  12  S.  E.  Rep. 645.  73S 

Christie  v.  State,  44  Ind.  40S,  530 


619 
767 


re  to  Pages. \ 

Chubbuck  v.  Cleveland,   37    Minn. 

466, 
Church  v.  Drummond,  7  Ind.  17, 

v.  Knightstown.  35  Ind.  177 

Churchill  v.  Lee,  77  N.  C.  341, 
v.  Welsh,  47  Wis.  39, 

Churchman  v.  City  of  Indianapolis, 
1 10  Ind.  259, 

Chute  v.  Slate,  19  Minn.  271, 

Cahall  v.  Citizens,  etc.,   Associa- 
tion, 74  Ala.  539, 

Cicero  v.  Williamson,  91  Ind.  541. 

Cicero,  Town  of,  v.  Clifford,  53  Ind. 
I9i, 

Cicero  Tp.  v.  Picken,  122  Ind.  260, 

v.  Shirk,  122  Ind.  572. 
Cincinnati,  etc.,  Co.  v.  Belle  Cen- 
tre (Ohio),  27  N.  E.  Rep.  464, 
v.  Bunnell,  61  Ind.  1S3,         ^24 
v.  Calvert.  13  Ind.  4S9, 
v.  Case,  122  Ind.  310, 
v.  Clifford,  113  Ind.  460, 


282, 

301. 
592. 
718, 
562, 


v.  Gaines,  104  Ind.  526, 

v.  Heim,  97  Ind.  525, 

v.  Huncheon,  16  Ind.  436,       85 

v.  Leviston,  97  Ind.  4S8,      743 

v.  McDade,  111  Ind.  26,  45 

v.  McFarland,22  Ind.  459,    300, 

v.  Rodgers,  24  Ind.  103, 

v.  Rowe,  17  Ind.  568, 

v.  Smith,  127  Ind.  461, 

v.  Washburn,  25  Ind.  259,    297, 

Citizens'    Bank  v.  Bolen,   121    Ind. 
301,  637.673.712, 

Citizens'  Ins.  Co.  v.  Harris,  108  Ind. 
392,  187,193, 

Citizens',    etc.,    Co.   v.    Shenango 
Natural  Gas  Co.,  13S  Pa.  St.  22, 

Citizens'  State  Bank  v.  Adams,  91 
Ind.  2S0.  517.  520, 

Claflin  v.  Dawson,  58  Ind.  40S, 
v.  Dunne,  129  111.  241, 
v.  Farmer's  Bank,  36  Barb.  540, 

v.  Meyer,  75  N.  Y.  260, 
Clair  v.  Terhune,  35  N.  J.  Eq.  336, 
Clandy  v.  Caldwell.  106  Ind.  256, 
Clanin  v.  Fagan,  124  Ind.  304.    577. 
Clapp  v.  Bromaghen,  9  Cow.  530. 
v.  Freeman,  16  R.  I.  344. 
v.  Hawley,  97  N.  Y.  610,  91 

v.  Martin, 33  111.  App. 438,  5S1, 
v.    Minneapolis,    etc.,    Co.,    36 
Minn.  6, 

v.  Reid,  40  111.  121, 
Claridge  v.  Mackenzie,  4   Man.  & 
G.  143, 


633 

7^»3 
62 

6iS 
5i9 


539 

339 
285 

7-H 
504, 

7i3 
146 

630 
525 
77i 
7S0 

7o7, 
770 
712 

165 

86 

748 
,  46 
764 
554 
669 

505 

718 

716 
769 

635 

567 

296 

176 
"5. 

547 
''43 
459 
282 

703 

572 
3>9 
.96 
71S 

692 
349 


xliv 


TABLE  OF  CASES. 


A',  ferences  are  to  Pages.] 


Clark  v.  Benefiel,  iS  Ind.  405,  392 

v.  Brown,  70  [nd.  4115,  2^2 

v.  Bullock.  65  Mo.  535,  4S6 

v.  City  of  Austin,  $8  Mini..  487.  640, 

654 
v.  Clark.  7  Paige,  607,  335.  462 

v.  Continental,  etc.,  Co.,  57  Ind. 
135,  149 

v.  Donaldson.  49  How.  Pr.  63,  083 
v.  Deutsch,  mm  [nd.  491,  6SS,  749 
v.  Dutcher,  9  Cow. 674,  $^ 

v.  Fitch  (Neb.),  49  N.  W.  Rep 


374. 

v.  Flint,  22  Pick.  231, 

v.  Fredericks,  [05  D.  S.  4,  391, 

v.  Gresham,  67  Miss.  203, 

v.  Gresham  (Miss.),  7  So.  Rep. 

224, 

v.  Hershey,  52  Ark.  473, 

v.  Jeifersonville,   etc.,   Co.,   44 

Ind.  248,  566, 


66 

034 
5°9 

7S 

46 
492 

59o 


v.  Kane.  37  Mo.  App.  25S,   161,  164 

v.  Lamb,  8  Pick.  415,  582 

v.  Levering,  37  Minn.  120,  732 
v.  Lilliebridge  (Kan.),  26  Pac. 

Rep.  43,  630 

v.  McCrary,  So  Ala.  no,  755 

v.  McElvy,  11  Cal.  154,  577 
v.  Missouri,  etc.,  Co.,  35  Kan. 


Clawsonv.  Lowry,70  Blackf.  140, 


350. 


People,  Breese  (111.),  340 
Raymond.  27  Mich.  456, 
Rhoads.  79  Ind.  342, 
Shaw,  101  Ind.  563, 
Smith.  13  Pet.  195, 
State,  87  Ala.  71,' 
State,  4  Ind.  26S, 
State,  125  Ind.  1, 


624 

7 

303 

536 

87,  5" 


53°)  679 
251,  632 

7*3>  7!9.  77i 


Stephenson.  73  Ind.  489, 
v.  Trovinger,  8  Ind.  334, 
v.  Vaughan,  3  Conn.  191, 
v.  Wilson,  77  Ind.  176, 
v.  Wise,  46  N.  Y.612, 
v.  Wright,  24  So.  Car.  526, 

[58,183,  1S4,  350 
Clarke  v.  Bell,  2  Litt.  [62,  207,  344 

v.  Matthewson,  12   Peters,  164, 

I7°-  J34> 

v.  Sawyer.  2  N.  Y.  49S, 
\  .  State.  87  Ala.  71. 

Clark  Civil  Tp.  v.  Brookshire,  114 

[nd.  437. 
Clark's  Cove  Guano  Co.  v.  Appling, 

33  W.  Va.  170. 
Clarkson  v.  Guernsey,  etc.,  Co.,  22 

Mo.  App.  109. 
v.  Manson,  60  How.  Pr.  1.5, 
v.  Meyer,  1  (  N.  Y.  Supp.  144, 
Clawson   v.    Chicago,  etc.,   Co.,  95 

Ind.  152, 


535. 
700 
669 
769 
221 
2^5 
237. 


599 
37.43 
604 
294 
190 
126, 


143 
414 

2;2 


790 

399 

29 

39S 
614 


Clay,  Ex  parte.  98  Mo.  57S, 

v.  Clark,  76  Ind.  t6l, 
Claypool  v.  Gish,  108  Ind.  [2  [, 

v.  Norcross,  36  N.  J.  Eq.  524, 
Clayton  v.  Blough,  93  Ind.  85, 

279>345>  53s-  7~48 
v.  State,  100  Ind.  201,  253,620 

Cleave  v.  Milliken,  13  Ind.  105,  108 

Cleveland,  In  re,    17   Alt.   Rep.  (N. 

Y.)  772,  4,5 

Cleveland,  etc.,  Co.  v.   Asbury,  120 

Ind.  2S9,  "    624,  626 

v.  Bowen,  70  Ind.  478,  693 

v.  Chamberlain,  1  Black,  419,     12^, 

129,  1S6 

v.  Closser,  126  Ind.  34S,  65,  84, 

16S,  356,  697,  700 

v.  Newell,  104  Ind.  264,  571 

v.  Obenchain,  107  Ind.  591,  630 

v.  Vajen,  76  Ind.  146  26S,  413 

v.  Wynant,  100  Ind.  160,  723 

v.  Wynant,  119  1  nd.  539,  604 

Clegg  \.  Fithian,  32  Ind.  90,  281 

v.  Patterson,  t,2  Ind.  135,  2S1 

v.  Waterbury,  88  Ind.  21,     394.  624 

Claggetl  v.  Sims".  31  N.  II.  22,  261 

Clelland  v.  Tanner,  S  Col.  252,  449 

v.  Walbridge,  78  Cal.  358,  769 

Clem  v.  Clem  (Ky.),  13  S.  W.  Rep. 

102,  574 

v.  Commonwealth  (Ky.),  13  S. 

W.  Rep.  102,  611 

v.  Martin,  34  Ind.  341,  737 

v.  State,  31  Ind.  4S0,  661 

v.  State,  33  Ind.  418,  4,  528 

Clemson  v.  State  Bank,  1  Scam.  45,  273 

Clester  v.  Gibson,  is  Ind.  10,  75 

Clews  v.  Bank,  105  N.  Y.39S,  617 

Clicquot's  Champagne,  3  Wall.  114,  700 

Climie  v.  Odell,  20  Mich.  12,  93 

Cline  v.  Gibson,  23   Ind.  11,  162 

v.  Inlow,  14  Ind.  419,  596 

v.  Lindsev,  no  Ind.  337,  167, 

50S,  571,  67S 

v.  Love,  47  Ind.  258,  •  268 

Clinton   v.    Phillips,   7  T.  B.  Mon. 

118,  323 

v.  Rowland,  24  Barb.  634,    657,  661 

Clodfelter  v.  Hulett,  92  Ind.  426,      163, 

615,  766 
Clore  v.  Mclntire,  120  Ind.  262,  67S 
Close  v.  Samm,  27  la.  503,  '  539 

Clough  v.  Curtis,   10  Sup.  Ct.  Rep. 

573.  .  5 

v.  Thomas,  53  Ind.  24,  601,  736 

Clouser  v.  Clapper,  59   Ind.  548,  791 

v.  Ruckman,  104  Ind.  588,  767 

Clowes  v.  Dickenson,  8  Cow.  32S,       17 


TABLE  OF  CASES. 


xlv 


References  are  to  Pages.] 


Cluck  v.  State,  40  Ind.  263,  434,  530 

Clure  v.  Lay,  30  Ala.  20S,  4S3 

Clutter  v.  Riddle,  1:4  Ind.  500,  gi 

Coan  v.  Grimes,  63  Ind.  21,  743 

Coates  v.Cunningham,  100  111.  463,  471 

v.  First  Nat.  Bank, 91  N.Y.20,  405, 

414 

v.  Hopkins,  34  Mo.  135,  537 

v.  Wilkes,  94  N.  C.  174,  457 

Coats  v.  Gregory,  10  Ind.  345,  704 

Cobb  v.  Griffith,  12  Mo.  App.  130,     657 

v.  Malone,  91  Ala.  3SS,  678 

Cobble  v.  Tomlinson,  50  Ind.  1550,    2S8, 

784 
Coble  v.  Elzroth,  125  Ind.  429,  251,  577, 

740,  786 
Coburn  v.  Ames,  So  Cal.  243,  16S 

v.  Murray,  2  Me.  336,  755 

v.  Smart,  53  Cal.  742,  6S,   114 

Cochnower  v.  Cochnower,  27  Ind. 

253,  282,  284 

Cochran  v.  Dodd,  10  Ind.  476,  162 

Cochrane  v.  State,  30  Ohio  St.  61,    232 
Cockrill  v.  Hall,  76  Cal.  192,  151 

Cockrum  v.  West,  122  Ind.  372,         294 
Cody  v.  Filley,  4  Cal.  342,  313 

Coe  v.  Beckwith,  31  Barb.  339,  601 

v.  Givan,  1  Blackf.  367,        404,  791 
Coffey  v.  Wilson,  2  Ala.  701,  90 

Coffin  v.  Argo,  134  111.  276,  216 

v.   Edington    (Idaho),   23   Pac. 
Rep.  80,  115 

v.  Evansville,  etc.,  Co.,  7  Ind. 
413,  288,  632 

Coffman  v.  Acton,  74  la.  147,  402 

Cogan  v.  Ebden,  1  Burr,  3S3,  5S1 

Coggeshall  v.  State,  112  Ind.  561,      305 
Coggswell  v.  Hogan,  1  Wash.  4,  92,  109 

v.  State,  65  Ind.  1,  637 

Cohen  v.  Trowbridge,  6  Kan.  3S5,     633 
Cohens  v.  Virginia,  6  Wheat.  264,     58, 

134 

Cohn  v.  Wright,  S9  Cal.  S6,  713 

Coit  v.  Haven,  30  Conn.  190,  672 

Colbert  v.  Rankin,  72  Cal.  197,  463 

Colchen  v.  Ninde,  120  Ind.  SS,     9S,  394, 

7S3 

Cole  v.  Allen,  51  Ind.  122,  2S4,  469,  671 

v.  Butler,  43  Me.  401,  147 

v.  Connolly,  16  Ala.  271,  462 

V.  Crawford.  69  Tex.  124,     575.  624 

v.  Driskell,  1  Blackf.  t6,      640,  754 

v.  Fall  Brook  Coal  Co.,  ^7  Hun. 

585.  7SS 

v.  Ciourlay.  79  N.  \  .  527,  514 

v.  Howard,  56  Ind.  330,  62 

v.  Kidd,  No  Ind.  563.  296 

v.  Terrell,  71  Tex.  549,  291 

Colee  v.  State.  75  Ind.  511,  256.  691, 

770,  771 


Coleman  v.  Bell,  4  N.  M.  46,  544 

v.  I  )obbins,  S  Ind.  156,  271,  39. 
v.  Gilmore,  19  Cal.  340,  789 

v.  Kells,  31  So.  Car.  601,  470 

v.  McAnulty,  16  Mo.  173,  140 

v.  Morrison, 1  A.  K.  Marsh.  406,  127 
v.  State,  in  Ind.  563,  251,  253, 

255, 
Colerick  v.  Hooper,  3  Ind.  316,   176.  182 
Colglazier  v.   Colglazier,    124  Ind. 

196,  510,  710 

Colle  v.  State,  75  Ind.  511,  768 

College  Corner,  etc.,  Co.  v.  Moss, 

77  Ind.  139,  630 

Collett  v.  Allison   (Okl.),  25  Pac. 

Rep.  516,  591 

Colley  v.  Commonwealth  (Ky.),  12 

S.  W.  Rep.  132,  254 

Collins  v.  Collins,  100  Ind.  266,  774 

v.  Davis,  32  Ohio  St.  76,  356 

v.  Frost,  54  Ind.  242,  619 

v.  Gibbs,  2  Burr.  S99,  396 

v.  Huff,  63  Ga.  207,  592 

v.  Lightle,  50  Ark.  97,  413 

v.  Loyal,  56  Ala.  403,  672 

v.  McDufhe,  89  Ind.  562,      374.  375 

v.  Maghee,  32  Ind.  268,  ~^<> 

v.  Mitchell,  5  Fla.  364.  140 

v.  Nichols,  7  Ind.  447,  633 

v.  Seattle,  2  Wash.  Ty.  354,         261 

v.  U.  S.  Express  Co.,  27  Ind.  11,  159 

Collis  v.  Bowen,  8  Blackf.  262,  679 

Coloma  v.  Eaves,  92  U.  S.  484,  285 

Colorado,  etc.,  Co.  v.  Cowell,  6  Col. 

73,  r34 

v.  Caldwell,  11  Col.  545,  630 

Colt  v.  McConnell,  nC>  Ind.  249,  771 

Colton  v.  Rupert,  60  Mich.  318.  155 

v.  Vandergolgen,  87  Ind.  361.  536 

Colvig  v.  Klawath  Co.,  16  Ore.  294.  62 

Colvin  v.  Warford,  18  Md.  273,  469 
Columbian   Ins.  Co.  v.  Catlett,   12 

Wheat.  3S3,  640 

Columbus,   etc.,   Co.   v.   Board,  65 

Ind.  427.  9 

v.  Braden,  no  End.  558,  567 

v.  Gibbs,  24  So.  Car.  60,  158 

v.  Griffin,  45  [nd.  369,  256 

v.  Hydraulic,  etc.,  Co.,  33  Ind. 

435-  S6 

V.  Powell,  40  Ind.  37.              61S.  689, 

7S7»760 

Combs  v.  State.  26  Ind.  9S.  5 

v.  State.  75  Ind.  215.      159,  622,  786 

v.  Hibberd,  45  Cal.  174.  109 
Commercial  Fire  Ins.  Co.  v.  Allen, 

So  Ala.  571,  622 
Commissioners    K\  parte,   112    U 

S.  177.  41" 

v.  Clark.  94  U.  S.  27S,  643 


xlvi 


TABLE  OF  CASES. 


References  <t 

Commissioners   v.    Hall,    7    Watts 
(Pa.).  390,  9-37 

v.  Kelsey,  120  111.  483,  33 

Commonwealth     v.     Andrews,     97 
Mass.  543,  24$ 

\ .  Barry,  9  Allen.  276,  572 

v.  Brown,  123  Mass.  410,  6S1 

v.  Brown,  1  (7  Mass.  5S5,       529.  578 
v.  Certain  IntoxicatingLiquors, 
14S  Mass.  124.  5Sl 

v.  Flanagan,  7  W.  .V  S.  415,        528 
v.  Dandrige,  2  Va.  Cas.  |.o8,  7 

v.  Dedham,  [6  Mass.  141,  251 

v.  Durham.  22  Pick.  II,  323 

v.  Flanagan.  7  W.  &  S.  415,  528 

v.  Hippie.'",  Pa.  St.  9,  5 

v.Jackson.  1  Leigh.  485,  306 

v.James,  99  Mass.  438,  534 

v.  Lehigh    Valley   Co.,   12   Pa. 
St.  42.1.  102 

v.  Livermore,  4  Gray.  iS.  528 

v.   Matthews  (Ky.),  12    S.    W. 
Rep.  323,  239 

v.  McCready,  2    Metcf.   (Ky.), 
376.  249 

v.  McDowell,  86  Pa.  St.  377,     198. 

199 
v.    Meserve  (Mass.),  27   N.  E. 
Rep.  997,  255 

v.  Mead,  153  Mass.  284,  733 

v.  Mosier,  135  l'a.  St.  221,  677 

v.  Picketsoh,  5  Met.  412,  $$$ 

v.  Powers.  109   Mass.  353,  534 

v.  Smith,  4  Binnev.  117,  431 

v.  Webster,  5  Cush.  295,  53S 

v.  Wetzell,84  Ky.  537.  307 

v.  Wickersham,  90  Pa.  St.  311,  434 
Commonwealth  Ins.  Co.  v.  Pierro, 

6  Minn.  569,  124 

Company    of   Carpenters   v.    Hay- 
ward.  1   Doug.  374,  702 
Comparet  v.  Hedges,  6  Blackf.  416,  64S 
v.  Southwood,  1  Kan.  143,  743 
Compton  v.  Lvey,  59  Ind.  352,             398 
v.  State,  89  Ind.  338,      2^,  767,  76S 
Comstock  v.  Cole.  28  Neb.  470,         [51 
Conant  v.  Riseborough,  30  111.  App. 

498,  66 

Conaway  v.  Ascherman,94lnd.i87,  116, 

171,  206 
Concannon  v.  Noble,  96  Ind.  326,      116 
Conden  v.  Morningstar,  94  [nd,  1 50,  536, 
677-  698,  773 
Cones  v.  Ward.  47  Mo.  289,  735 

Congdon  v.  Congdon,  59  Vt.  597,        93 
r  v.  Miller,  104  Ind.  592,  399 

Conklin  v.  Waltz,  3  Ind.  396,  404 

Conley  v.  Dibber,  91  Ind.  413,  511 

Connard  v.  Christie,  16  Ind.  427,       599 
Connell  v.  Putnam,  58  N.  H.  335,     523 


re  to  Pages.] 

Connellev   v.   Leslie.   2S   Mo.   App. 
551!  756 

v.  Peck,  3  Cal.  75-  523 

Connelly  v.  Shamrock,  etc.,  Society, 
43  Mo.  App.  283.  62S 

Conner   v.   Citizens    Rv.   Co.,   105 
Ind.  62,  709 

v.  dimes,  49  Ind.  4S2,  075 

v.  Marion,  112  Ind.  517,  202,  203 
v.  Paxson,  1  Blackf.  207,  308 

v.  Pope,  2]  Mo.  App.  344,  489 

v.  Town  of  Marion,  112  Ind.  517,  6S7 
v.  Winton,  S  [nd.  315,  581,  768 

Connecticut,   etc.,   Co.  v.  Clapp,   1 
Cush.  559,  616 

v.  Franklin   County   Commis- 
sioners. 127  Mass.  50,  441 

v.  Union   Trust  Co.,  112  U.  S. 
250,  746 

Connohle    v.  Clark,   38   Mo.   App. 
486,  547 

Connor  v.  Connor.  4  Col.  74,  134 

v.  People.  23  Mo.  App.  344,         499 

Conoway  v. Weaver,  1  Ind. 263,  675,  706 

Conrad  v.  Baldwin,  3  la.  207,  66S 

v.  Kinzie.  105  Ind.  281,  692 

Conradt  v.  Clauve.  93  Ind.  476,  570 

Conrow  v.  Schloss,  55  Pa.  St.  28,      438 

Consaul  v.  Lidell,  7  Mo.  250,  757 

Conselyea  v.  Swift,  103  N.  Y.  604,   615 

Consolidated  Coal  Co.  v.  Schaefer 
(111.),  25  N.  E.  Rep.  788,  559 

Contee  v.  Dawson,  2  Bland.  264,  82 

v.  Pratt,  9  Md.  67.  94 

Continental  Life  Ins.  Co.  v.  Houser, 
m  Ind.  266,  491 

v.  Kessler,  84  Ind.  310,  299 

Continental,  etc.,  Co.  v.  Yung,  113 
Ind.  159,  624,  686 

Conwell  v.  Clifford,  45  Ind.  392,         6SS 

Conway  v.  Clinton.  1  Utah,  215,        578 
v.  Day,  79  Ind.  31s,  181 

v.  State.  1 18  Ind.  4S2,  739 

v.  Vizzard,  122  Ind.  266,  577 

Conyers  v.  Mericles,  75  Ind.  443,      179, 
562,  565,  609 

Cook  v.  Citizens'  National  Bank,  73 
Ind.  256,  82 

v.  Conway,  3  Dana.  454,  273 

v.  Darling.  18  Pick.  393,  2S5 

v.  Dickerson,  1  Duer,  679,  335,  462 
v.  Doud.  14  Col.  483,  622 

v.  Farrah,  105  Mo.  492,  546 

v.  Hamilton,  67  la.  394,  54 

v.  Hannibal, etc., Co., 63  Mo. 397,  485 
v.  Hopkins,  66  Ind.  208,  605 

v.  King,  7  111.  App.  549,  326 

v.  Knickerbocker,  11  Ind.  230,  75 
v.  McNaughton,  128  Ind.  410,  711 
v.  Skelton,  20  111.  107,  669 


TABLE  OF  CASES. 


xJvn 


References  a 

Cook  v.  State,  13  Ind.  154,  308 

v.  Wood,  24  111.  295,  1S0 

Cooke  v.  Craw  lord,  1  Tex.  9,  313 

V.  Williamson,  11  Ind.  242,  6S1 

Cook  County  v.  McCrea, 93  111.  236,  30 
Cookerly  v.  Duncan,  87  Ind.  332,  736 
Cool   v.    Peters    Box,  etc.,   Co.,  87 

Ind.  531,  81,  271 

Coombs  v.  Hilbred,  43  Cal.  453,        780 

Coon  v.  Cook,  6  Ind.  26S,  420 

v.  Grand  Lodge,  76  Cal.  354,         97 

v.  McCormick,  69  la.  539,  312 

v.  Welborn,  S3  Ind.  230,       282,  375 

Cooper,  In  re,  22  X.  Y.  67,  9 

Cooper,  Matter  of,  93  N.  V.  507,        634 

v.  City  of  Big  Rapids,  67  Mich. 

607,  414 

v.  Coates,  2  1  Wall.  105,  509,  573,  656 

v.  Cooper,  86  Ind.  75,  172,  174, 

360,  361 

v.  Blood,  2  Wis.  62,  507 

v.  Board,  64  Ind.  520,  162 

v.  Breckenridge,  1 1  Minn.  341,   656 

v.  Hamilton,  8  Blackf.  377,  590 

v.  Hayes,  96  Ind.  386,  275 

v.  Helsabeck,  5  Blackf.  14,  589 

v.Jackson,  99  Ind.  566,         563,  564 

v.Johnson,  26  Ind.  247,  514 

v.  Mills  County,  69  la.  350,         560 

v.  Robertson,  87  Intl.  222,  375 

v.  Shepardson,  51  Cal.  298,  475 

v.  State,  120  Ind.  377,  253,  529, 

570,  578,  579,  620,  678,  791 

v.  Sunderland,    3   Clarke  (la.), 

2S6 

52 

57° 
634 
401 

639 

3r5 

744 

453 

414 
12 

643 

6S4 


114, 
Cooter  v.  Baston,  S9  Ind.  185, 
Copeland  v.  Koontz,  125  Ind.  136, 

v.  State.  126  Ind.  51, 
Copley  v.  Rose,  2  X.  Y.  115, 
Corbett  v.  Citv   of  Troy,    ^3   Hun. 

22S, 
Corey  v.  Lugar,  62  Ind.  00,         30S, 

v.  Rhineheart,  7  Ind.  291. 
Corinne,    etc.,    Co.   v.  Johnston,    5 

Utah,  147.  446, 

Corn  v.  City  of  Cameron,  19  Mo. 

A-pp.  573 
Cornett  v.  Williams,  20  Wall.  226, 
Corning  v.  Troy,  etc.,  Co.,  44  N.  Y. 

577. 

v.  Woodin,  46  Mich.  44, 
Cornwall  v.    Davis,   3S    Fed.    Rep. 

S78, 
Corry  v.  Caulfield,  2  Ball  &  Beatty, 

255i 
Cort  v.  Birheck,  1  Doug.  218. 
Cory  v.  Silcox,  6  Ind.  39,  534, 

Coryell  v.  Stone,  62  Ind.  307,      531, 
Corwin  v.  Thomas,  83  Ind.  no, 
Cosgrove  v.  Cosby,  S6  Ind.  511, 


J34 
644 
678 
782 
1S1 
769 


re  to  Pages, .] 

Coster,  Ex  parte,  7  Cow.  ^23, 

v.  Peters,  7  Rob.  (N.  Y.)  3S6, 
Cotes  v.  Carroll,  28  How.Pr.  436, 138, 
Cothren   v.  Connaughton,  24   Wis. 

134.  323. 

Cottle  v.  Cottle,  6  Greenl.  140,    620, 
Cottrell  v.  /fDtna  Life  Ins.  Co.,  07 
Ind. 311,  527, 

v.  Cottrell,  81  Ind.  87, 
v.  Cottrell,  126  Ind.  181, 
v.  Nixon,  io<;  Ind.  37S,     19,  113, 
v.  Shadley,  77  Ind.  348, 
Cotzhausen  v.  Simons.  ^7  Wis.  103, 
Coulter  v.  Coulter,  8l  Ind.  542, 
County  Ct.  of  Warren  v.  Daniel,  2 

Bibb.  573, 
Courtney  v.  Courtney  (Ind.), 
Courts  of  Lancaster,  In   re,  4   Pa. 

L.  Jr.  Rep.  315, 
Couse  v.  Havens,  44  Ind.  2S2, 
Couts  v.  Neer,  70  Tex.  46S, 
Coverdale  v.  Alexander,  82  Ind.  503, 
Covert  v.  Shirk,  58  Ind.  264, 
Covington,    etc.,    Co.   v.   Moore,  3 

Ind.  510, 
Cowan  v.  Kinney,  33  Ohio  St.  422, 
Cowdin  v.  Teal,  67  N.  Y.  5S1, 
Cowell  v.  Buckelen,  14  Cal.  640, 
Cowgill  v.  Long,  15  HI.  202, 
Cowles  v.  Robinson,  11  Cal.  5S7, 


Cox  v.  Albert,  78  Ind.  241,  394, 

v.  Baker,  113  Ind.  62, 
v.  Dill,  S5  Ind.  334, 
v.  Gress,  51  Ark.  224, 
v.  Harvey,  53  Ind.  174, 
v.  Hunter,  79  Ind.  590, 
v.James,  45  N.  Y.  557, 
v.  Louisville,  etc.,  Co.  (Ky.),  11 
S.  \V.  Rep.  808, 

v.  Macy,  76  Iowa,  316, 
v.  Pruitt,  25  Ind.  90,  37S, 

v.  State,  49  Ind.  568, 
v.  United  States,' 6  Pet.  172, 
v.  Yickcrs,  35  Ind.  27. 
Coxe  v.  Deringer,  82  Pa.  St.  236, 

v.  Field.  iGr.  (X.  J.).  215, 
Covkendall  v.  Way,  29  Minn.  162, 
Coyle  v.  Crew,  34  La.  Ann.  339, 
Coyner  v.  Boyd,  55  Ind.  166, 
Crabs  v.  Mickle,  5  Ind.  145,       412, 

Crabtree  v.  Hagerhaugh.  23  111.  349, 
Craddick  v.  Pritchett,  Peck  (Tenn.), 

17. 
Craft  v.  Dalles  City  (Ore.),  27  Pac. 
Rep.  163, 

v.  State  Bank,  7  Ind.  219, 
Craig  v.  F.ncey,  78  Ind.  141, 

v.  Fanning,  6  How.  Pr.  336, 
v.  Frazier,  127  Ind.2S6,  684,689, 


435 
497 

'5- 

7S0 

*.2I 

5S7 
53S 

718 

sSo 

181 

440 
3° 

40 
446 
610 
414 
3*3 

592 

732 
210 

434 
61 

610 
419 

779 
698 
178 
7SS 
394 
593 

4S9 
161 
494 
255 
119 

4°3 
677 
267 
82 
3*3 
>P 
550, 

73i 
619 

93 

762 
102 

339 

7S8 

747 


xlviii 


rABLE  OF  CASKS. 


[References  a 
Craighead  v.  Wilson,  i8  How.  199,     73 
Cralle  v.  Cralle,  Ji  \  a.  773,  459 

v.  Cralle,  s|  Va.  198,  489 

Crandall   v.  Firsl    National   Bank, 

61  Ind.  349, 
Crane.  Ex  parte.  5  Pet.  [1 
v.  Andrews,  [0  Co 
v.  Crane,  12  Conn. 
v.  Farmer,  14  Col.  294. 
v.  Farmer  (Col.),  23  Pac 
455 


3IO> 


Kimmer,  77  End.  215, 
v.  Giles,  3  Kan.  54, 
v.  Reeder,  jN   Mich.  527. 
Crank  v.  Flowers,4  Heisk.  629,         6 
Cranor  v.  School   District,   iS  Mo. 


761 

43s 

339 

9 

111,  160 

Rep. 

14,     7S 

2S4,  672 

iS 

7- 

7- 


757 
69,  84 

4S3 
56S 

.   E. 

159,  16S 

596 

7S8 

263 
712 

99 
4S2 

733 

566 
630 
472 


A.pp.  397. 
Cravens  v.  Chambers,  55  Ind.  5. 

v.  Duncan,  55  Ind.  347, 
Crawford,  In  re,  11.;  X.  Y.  560, 
v.    Anderson    (Ind.),  2S  N 
Rep.  314. 

v.  Crockett.  55  Ind.  220, 
v.  Georgia,  etc.,  Co.,  8S  Ga.  5, 
v.    Kansas    City,    etc.,    Co.,   45 
Kan.  474, 

\ .  Powell,  coi  I  nA.  421, 
V.  Prairie,  etc..  Co..  44  Ind.  361, 
v.  Wingfield,  25  Tex.  414. 
v.  Witherbee,  77  Wis.  419, 
Crawfordsville,  City   of,  v.  Brund- 
age,  57  Ind.  262, 

v.  I  lays.  42   I  ml.  200, 
v.  Johnson,  51  Ind.  397, 
Cray  v.  State.  32  Ind.  384,  250 

Creamer  v.  Sirp, 91  Ind.  366,  348,  75S 
Credit  Foncier  v.  Rogers,  10  Neb. 

[84,  672 

Credit  Co.   v.   Arkansas,   etc.,    Co., 

128  U.  s.  258,  97,  104 

Creech  V.  Richards.  76  Ga.  36,  785 
Creely  v.  Bay   State,   etc.,  Co.,   103 

Mass.  514,"  593,  594 

Creighton  v.  Kerr.  20  Wall.  204,  633 

Crih  \.  Morse,  79  Wis.  193,  490 
v.  Waycross,  etc.,  Co.,  S2  Ga. 

597.  636 

Crich  v.  Williamsburgh,  etc.,  Co., 

45   Minn.    1  1  1.  ^  582.  655 

Crippen  v.  Morss,  49  N.  Y.  63,  411 

Crisfield  v.  Murdock,  [27N.Y.315,  734 
Crispen  \.  Hannovan,  86  Mo.  too,  494 
Crisman  v.  Masters,  23  Ind.  319,  375 
Critchell  v.  Brown,  72  Ind.  539,         124. 

I54.323 
Crutchfield    v.  Richmond,  etc.,  Co., 

76  N.  C  57- 

Crittenden      v.      Methodist,      etc., 

Church.  8  How.  Pr.  327,  74 

Crocker  v.  Carrier.  65  Wis.  662,         745 


re  to  Pages.] 

Crocker  v.  Dunkin,  6  Blackf.  535.  286 
Cromelien  v.  Brink,  29  Pa.  St.  522,  681 
Cromwell  v.  Lowe.  14  Ind.  234.  43 

Cronk  v.  Cole.  10  Ind.  485,  635 

Crookshank    v.   Kellogg,  b  Blackf. 

480,  616 

Crosby  v.  McDermitt,  7  Cal.  146,     483 

Cross  v.  Moulton,  15  Johns.  469,        528 

\.  Pearson,  17  Ind.  612,        616,747 

V.  People.  47  111.   152,  251,  308 

v.  State,  55  Wis.  261,  780 

v.  Tuesdale,  28  Ind.  44,  597 

v.  Wilson,  ^2  Ark.  312,  156 

Crottv  v.  Wyatt,  3  Bradw.  3SS,  533 

Crouse  v.  Holman,  19  Ind.  30,  596 

v.  Rowlev.  3  X.  Y.  Supp.  S63,    678 

Crow  y.  Board,  11S  Ind.  51,  62 

\ .  Edwards,  I  lob.  5  b.,  424 

Crowder  v.  Reed.  So  Ind.  1.        397-399 

Crowell  v.  City  of  Peru.  47  Ind.  308,  675 

\.  Harvey,  30  Neb.  570,  7S8 

v.  Western,  etc..  Bank,   3  Ohio 

St.  406,  733 

Croweley   v.    Pendleton,   46  Conn. 

62,  7S5 

Croy  v.  State.  32  Ind.  384,  527 

Crum  v.  Elliston,  32  Mo.  App.  591,  650 
Crume  v.  Wilson,  104  Ind.  583,  217 

Crumley  v.  Hickman,  92  Ind.  3SS.    319, 

766,  771 
Crumley     v.    McKinney  (Tex.),  9 

S.  W.  Rep.  157.  314 

Crump  v.  Morgan,  3  Ired.  Eq.  91.  519 
Cruzan  v.  Smith,  41  Ind.  28S,    715,  724. 

74S 
Cuhherlv  v.  Wine.  13  Ind.  3^3,  295 

Cuddy,  In  re.  131  U.  S.  2S0,  S8 

Culbertson  v.  Hill,  87  Mo.  ^^,  792 

Culph  v.  Philips.  17  Ind.  209,  420 

Cumberland  Coal,  etc.,  Co.  v.  Sher- 
man. 20  Md.  117,  492 
Cumings  v.  Mayor.  11  Paige,  596,         30 
Cummings   v.    Armstrong.    34    W. 
Va.  1.                                            438-  440 
v.  Mayor.  11  Paige,  596,        593,  594 
V.  McKinney,  5  111.  57,  696 
Cuneo  v.  Bessoni,  03  Ind.  524.  113 
Cunard  Steamship  Co.  v.  Voorhis, 

104  I  ml.  525,  191 

Cunningham  v.  Ashley,  13  Ark. 653,  489 

v.  Gallagher,  6i  Wis.  170,  615 

v.  Jacobs,  120  I  ml.  306,  306 

v.  McKindley,  22  Ind.  149,  589 

v.  Smithson,i2  Leigh.  (Va.)32,  556 

v.  State.  65  Ind.  377,  572 

v.  Thomas,  25  Ind.  171,         SS,  390 

Cupp  v.  Campbell.  103  Ind.  213,    401,  403 

Curan's  Case.  7  Gratt.  619,  528 

Curm  v.  Rauh.  100  Ind.  247.  535 

Curran  v.  Curran,  40  Ind   473,  404 


TABLE  OF  CASES. 


:lix 


I  References  a 
Curry  v.  Bratnev,  29  Ind.  195,     698,  731 
v.  Miller,  42  End.  320,  418 

Curten  v.  Atkinson,  29  Neb.  612,       116, 

122,  13S 

Curtis  v.  Gooding,  99  Ind.  45,  599 

v.  Root.  2S  111.  367,  334 

Curtiss  v.  Hazen,  56  Conn.  146,         402 

Cushman  v.  Flanagan,  50  Tex.  3S9,  525 

Cuthrell  v.  Cuthrell,  101  Intl.  375,      702 

Cutler  v.  Evans,  115  Mass.  27,  31S 

v.  State,  62  Ind.  39S,  374,  446 

Cutsinger  v.  Nebeker,  5S  Ind.  401,     489 

Cutter  "v.  Gumberts,  3  Eng.  (Ark.) 

449,  7i 

D 

D.  R.  Morton,  91  U.  S.  365,  78 

D'Overnois  v.  Leavitt,  8  Abb.  Pr. 

59.  639 

Dabbs  v.  Dabbs,  27  Ala.  646,  560 

DaCosta  v.  Guien,  7  S.  &  R.  462,  192 
Daegling  v.  Illinois,  etc.,  Co.,  33  111. 

App.  341,  57o 

Daggett  v.  Flanagan,  78  Ind.  253,  517, 

520 
Dahl    v.    Milwaukee,   etc.,  Co.,  65 

Wis.  371,  7^o 

Dailey  v.  Indianapolis,  53  Ind.  4S3,  45 
v.  Knisler    (Neb.),  "47    N.    W. 

Rep.  1045,  596 
Daily  v.  National,  etc.,  Co.,  64  Ind.  I,  404 

v.  State,  10  Ind.  536,  408 
Dakota  County  v.  Glidden,  113  U. 

S.  222,  125 

Dale  v.  Copple,  53  Mo.  321,  63 

v.  Kent,  58  Ind.  584,  So 
v.  Pruins  (Cal.),  20  Pac.  Rep. 

296,  266 

v.  See,  51  N.  J.  L.  378,  610 
Daley  v.   American,  etc.,  Co.,  150 

Mass.  77,  612 
Dalrymple   v.  Williams,  63   N.  Y. 

361,  581 

Damouth  v.  Klock,  2S  Mich.  163,  74 

Damp  v.  Dane.  29  Wis.  419.  392 

Dane  v.  Treat,  35  Me.  I9S,  700 

Danes  v.  Pettit,  11  Ark.  349,  161 
Daniel  v.  Warren   County,  1   Bibb. 

496>  434 

Daniels  v.  Brodie,  54  Ark.  216,    416, 


v.  McGinnis,  97  Ind.  549, 

v.  Tearney,  102  U.  S.  415, 
Danielson  v.  Gude,  11  Col.  87, 
Danks  v.  Rodeheaver,   26  W. 
274,  200, 

Danlay  v.  Edwards.  29  Miss.  41 

v.  Robbins,  3  Ark.  144. 
Dantz  v.  State.  ^7  Ind.  398, 
D 


57--  5 


551 
373- 
5S1 


Va. 
274. 


4r5 
637 

754 
611 

7S9 

409 


n  to  Pages.) 

Danville,  etc.,  Co.  v.  State,  16  Ind. 

'456» 
Darby    v.    Ousclcy,   36   Eng.    L.   & 

Eq.  qiS, 
Darland  v.  Rosencrans,  56  la.  122, 
Darlington  v.  Warner,  14  Ind.  449, 
Darnall  v.  Hurt,  55  Ind.  275, 
Darr  v.  State,  82  Ind.  II,  241. 

Darrell  v.    Ililligoss,  etc.,  Co.,  90 

Ind. 264. 
Darst  v.  Bates,  51  Hill,  439, 
Dart  v.  Dart,  32   L.  J.  P.  M.  &  A. 

125, 
Darwins  v.  Durker,  14  Ore.  37, 
Dashing  v.  State,  78  Ind.  357, 
Davenport   City  v.  Dows,  15  Wall. 

39°> 
Davenport  v.  Alpin,  70  Mich.  192, 

v.  Barnett,  51  Ind.  329, 

v.  Fletcher.  16  How.  U.  S.  142. 

v.  Harris,  27  Ga.  68,  657, 

v.  Russell,  5  Day,  145, 
David  v.  Calloway,  30  Ind.  112, 

v.  Leslie,  14  la.  S4, 
Davidson  v.  Bates,  in  Ind.  391, 

v.  City  of  New  Orleans,  32  La. 
Ann.  12415, 

v.  Farrell,  8  Minn.  258, 

v.  Henop,  1  Cranch.  C.  C.  2S0, 

v.  King,  49  Ind.  33S,  285, 

v.  King,  51  Ind.  224. 

v.  Morrison,  86  Ky.  397) 

v.  Murphy,  13  Conn.  213, 

v.  Peck.  4  Mo.  438, 

v.  State,  20  Fla.  784, 

v.  State.  62  Ind.  276, 
Davie  v.  Davie.  52  Ark.  221,    64,  66 
Daviess  v.  Arbuckle.  I  Dana.  525, 
Davis'  Est.,  In  re  (Mont.),  27  Pac. 

Rep.  342, 
Davis  v.  Bargus,  41  La.  Ann.  313, 

v.  Beason,  133  U.  S.  t,?,^ 

v.  Binford,  58  Ind.  457.         162. 

v.  Binford,  70  Ind.  44.   126,  2S7, 

\ .  Byrd,  94  Ind.  ;2;, 

v.  Calvert,  5  Gill.  .V  J.  269, 

v.  Charles   River,  etc.,  Co.,   n 
Cush.   506, 

v.  Crouch.  94  U.  S.  514, 

v.  Curtis.  70  la.  39S, 

v.  Daverill,  n  Mil.  141. 

v.  1  )a\  is,  7'>  Ind.  [60, 

v.  Donner,  82  Cal.  ;;. 

v.  Durham.  13  How.  Pr.  425. 

v.  Elliott,  15  Graj .  90, 

v.  Franklin,  25  Ind.  407 

v.  Green,  57  Ind.  493, 

v.  Hardy.  76  Ind.  272.  596. 

v.  Henson,  29  Ga.  345. 

v.  Hudson.  29  Minn.  27, 


592 
617 

H5 

521 

72 

10 
20S 

735 

3S8 

546 
596 

137 
61  1 

58S 

666 
10S 

490 

675 
615 

72S 

7-7 
412 
161 
769 
592 
758 
•  75 
616 

64 

7S 

SS 

769 

45i 

699 

702 

499 
489 

622 

'"'7 

713 
563 

7S6 

421 


! 


TAl'.LE  OF  CASES. 


393  > 
6.w, 


266, 


728 
785 
554 
IS6 

-77 
451 
621 

9 

517 
754 
761 

312 


References 

Davis  v.  Jenkins,  14  End.  57-.  1S3 

v.  Liberty,  etc.,  Co., 84  [nd.  "56.  567, 

'57- 
v.  Mayor,  r  I  )uer,  151,  63 

v.  Montgomery,  123  Ind.  5S7,     296, 

790 
v.  Perry,  41  I  ml.  305, 
v.  Pool,  67  Ind.  4-'  5,      297 
v.  Reamer,  105  I  nd.  318, 
v.  Robinson,  70  Tex.  394, 
v.  Scott,  13  Ind.  506, 
v.  Speiden,  104  U.  S.  83, 
v.  State.  35  Ind.  496, 
v.  State,  [19  Ind.  555, 
v.  State,  15  Ohio,  72, 
v.  State,  75  Tex.  420, 
v.  State,  14  Tex.  App.  645, 
v.  Sturgis,  1  Ind.  213, 
v.Town  ofFarmington,  42  Wis 
425,  5 so,  625 

v.  Town  of  Fulton,  52  \\  is.  (157,  567 
v.  Vaughan.7  Rich.(S.C)  342,     91 

I  )a\  is  County  v.  1  lorn,  4  Gr.(Ia.)  94,  in 

Davis    Henderson    Lumber  Co.  v. 
Gottschalk,  Si  Cal.  641,  132 

Daubenspeck   v.   Daubenspeck,  44 
Ind.  320,  785 

Daugherty  v.  Deardorf,  107  Ind.  527,  598 

Daunhauer  v.  Hilton,  82  Ind.  531,     266, 

279,  296 

Dawson  v.  Baum,  3  Wash.  Ty. 464,  782, 

789 
v.Coffman,28Ind.22o,  218,782,  7S6 
v.  Dawson,  20.  Mo.  App.  521,  669 
v.  Hemphill,  50  Ind.  422,  784 

v.  Shirk,  102  Ind.  ^43,    ,26,  532,  624, 

71S 
v.  \\  ilson,  79  Ind.  485, 
v,  Wisner,  n  la.  6, 

Day  v.  Callow,  39  Cal.  593, 
v.  Day,  100  Ind.  400, 
v.  1  Ienry,  104   Ind.  324, 
v.  1  luntington,  78  Ind.  2S0,     91,  92, 

349,  351.  362 
v.  Patterson,  18  Ind.  114, 
\.  School  Citv  of  Huntington, 
78  Ind.  2S0. 

v.  Wright.  104  Ind.  324, 
Deacon  v.  Schwartz,  18  Ind.  2S5, 
Deal  v.  Holter,  6  Ohio  St.  22S, 
Dean  v.  Georgia,  etc.,  Co.,  79  Ga. 
211, 

v.Jones,  27  Mo.  App.  350, 

v.  Miller.  66  Ind.  440, 

v.  Thatcher,  3  Va.  470, 
Dearborn  v.  Patton,  4  Ore.  58, 
Deardorfv.  Ulmer,  34  Ind.  353, 
Dearmond  v.  Dearmond,  12  Ind.  455,  514 
I  >t-  Armond  v.  Adams.  25  Ind.  455,   281 

v.  Glasscock,  40  Ind.  418,  784 


271 
560 
146 

iSS,  191 
7°3>  735 


599 


45° 
739 
628 
650 

5iS 

447 
670 

672 
[61 

306 


arc  to  Pages.] 

De  Armond  v.  Stoneman,  63  Ind. 

3S6,  60S 

Deas  v.  Thome,  3  John.  543,  457 

Deatly  v.  Potter.  29  Mo.  App.  222.  124 
Deatty  v.  Shirley,  S3  Ind.  21S,  292, 

293.  719,  7S6 
De  Barry-Baya,  etc.,  Co.  v.  Aus- 
tin, 76  Ga.  306,  297 
Debolt  \.  Carter,  31  Ind.  355,  604 
Decatur  y.  Paulding.  14  Pet.  497,  435 
Decatur  Bank  v.  St.  Louis  Bank,  21 

Wall.  294,  573 

Decker  v.  Bryant,  7  Barb.  182,  657,  66] 
Deen  v.  Hemphill,  Hempst.  154,  324 
Deere,  etc.,  Co.   v.    Ilucht,   32   Mo. 

App.  153,  '  101 

Deer  Lodge  v.  Kohrs,  2  Mont.  66,  217 
Deery  v.  Cray,  5  Wall.  795,  573,  614 

v.  Cray,  10  Wall.  263,  571 

Deeter  v.  Sellers,  102  Ind.  458,  712 

Deford  v.  Urbain,  42  Ind.  476,  368,  446 
De   Forest   v.   Thompson,  40  Fed. 

Rep.  375,  596 

De  France  v.  De  France,  34  Pa.  St. 

385.  702 

De  Grafrenreid  v.  Thomas,  14  Ala. 

6S1,  701 

De  Groot,  Ex  parte,  6  Wall.  497,  439 
De  Hart  v.  Aper,  107  Ind.  460,  792,  793 
Dehart  v.  Dehart,  15  Ind.  167,  420 

De  Hart  v.  Etnire,  121  Ind.  242,  620 
De  I  laven  v.  De  Haven,  77  Ind.  236,  361 
Dehority  v.  Nelson,  56  Ind.  414,  680,  715 
Deig  v.  Moorhead,  no  Ind.  451,         215, 

529,  5''"s 
Deitch  v.  Demott,  S9  Ind.  601,  266,  268 
De  Johnson  v.  Sepulbeda,  5  Cal.  149,  554 
De   La   Hunt  v.    Holderbaugh,    ^S 

Ind.  285,  63S 

De   Lashnutt  v.  Sellwood,   10   Ore. 

51,  20S 

Delaney  v.  Gault,  30  Pa.  St.  63,  147,  2S5 
Delaplaine   v.   Lawrence,  10  Paige, 

602,  115 

Delayney  v.  Fox,  2  C.  B.  N.  S.  768,  34 
Delcep  v.  Hunter,  1  Sneed,  100,  74 

Deleaney  v.  Brett,  51  N.  Y.  78,  414 

Delhaney  v.  State,  115  Ind.  499,  678 
Delonde  v.  Carter.  28  Ala.  541,  116 

Delphi,  City  of,  v.  Lowery,  74  Ind. 

520,  '  4S6,  729,  730 

Demerritt  v.  Randall, 1 16  Mass.  331,  537 
Demetz  v.  Benton,  35  Mo.  App.  559,  547 
Dempsey  v. ■  Mayor,  10  Daly,  417,  625 
Demskev.  Hunter,  2^  Mo.  App.  466,  762 
Den  v.  Graham,  1  Dev.  ..V  Batt.  76,  666 
Denby  v.  Hart,  4  Blackf.  13,  392 

Deneale  v.  Archer,  8  Pet.  526,  137 

Denman  v.  McMahin,  37  Ind.  241,  297, 

635 


TABLE  OF  CASES. 


\Referen 

Dennis  v.  Louisville,  etc.,  Co.,  116 
Ind.  42, 

v.  Maxfield,  to  Allen,  13S, 
Dennison  v.  Talmage,  29  Ohio  St. 

433- 

Denny  v.  Denny,  113  Ind.'  22, 

v.  Moore,  13  Ind.  41S, 
Denton  v.  Woods,  86  Term.  37, 
Denver,  etc.,  Co.  v.  Cowgill  (Kan.), 

24  Pac.  Rep.  475, 
Denver  v.  Pearce,  13  Col.  383, 
De  Pew  v.  Robinson,  95  Ind.  109, 
De  Priest  v.  State,  6S  Ind.  569, 
Deputy  v.  Hill,  85  Ind.  75, 

v.  Mooney,  97  Ind.  403, 
Dequindre  v.  Williams,  31  Ind.  444, 

670, 
Derrick  v.  Emmens,  38  N.  Y.  Rep. 

481,, 
Detnck  v.  McGlone,  46  Ind.  291, 
Detro  v.  State,  4  Ind.  200,  c;  14, 

Des    Moines,     etc.,    Co.    v.    Polk 

County,  etc.,  Co.  (la.),  45  N.  W. 

Rep-  773* 
De  Sylva  v.  Henry,  3  Porter,  Ala. 

!3-' 

Deveemon  v.  Shaw,  70  Md.219, 
Devereux    v.     Champion    Cotton 
Mills,  17  So.  Car.  66,  16S, 

Devlo  v.  State,  4  Ind.  200, 
Devol  v.  Mcintosh,  23  Ind  529, 
Devoss  v.  Jay,  14  Ind.  400, 
Devot  v.  Marx,  19  La.  Ann.  491, 
Dewey  v.  Greene,  4  Denio,  93, 

v.  State,  91  Ind.  173,  520, 

Dewitt  v.  Prescott,  51  Mich.  29S, 
De  Wolf  v.  Hayden.  24  111.  525, 
Dexter  v.  Codman,  14S  Mass.  421, 
Dial  v.  Dial,  ^3  S.  C.  306, 
Dihblee  v.  Sheldon,  10  Blatch.  17S, 
Dibrell  v.  Eastland,  3  Verg.  507, 
Dick  v.  Kendall,  6  Ore.  166, 

v.  Mullins,  128  Ind.  365,       452, 


70S 
545 

224 
59° 

560 

266 

666 
102 

531 

7S7 
261 

525 

1  -', 
672 

653 
533 
5i8 


v.  WTilliams,  130  Pa.  St.  41, 
Dickinsheets  v.  Kaufman,   29  Ind. 

'54-  129, 

Dickey  v.  Davis,  39  Cal.  565, 

v.*  Shirk,  12S  Ind.  278, 
Dickerson  v.  Chrisman,  28  Mo.  134, 

v.  Hays,  4  Black  f.  44. 

v.  Turner.  [5  Ind.  4. 
Dickinson  v.  Coulter,  45  Ind.  44^, 

v.  Dickey.  76  X.  Y.  602, 
Dickson,  Ex  parte,  64  Ala.  188, 
Dickson   v.  Chicago,   etc.,   Co.,  Si 
111.  215, 

v.  Lambert,  98  Ind.  487, 


624 

l3- 
4i3 

508 

252 
597 
493 
793 
631 

73t> 
697 

4S3 
1 12 
446 
5S9 
341 
1 12 

755- 
77i 

55" 

350 
510 

708 

557 
630 
648 
509, 
568 
190 

5r9 

555 
75° 


arc  /o  Pages\ 

Dickson  v.  Rose,  S7  Ind.  [03,     200,  71; 

71s-  TV i 
Diehl  v.  Ohrie,  3  Whan.  (Pa.)  143,  102 
Dietrich  v.  Kock,  35   Wis.  618,  39S 

Diffendal   v.  Virginia,  etc.,  Co.,  86 

V'a.  459, 
Dikeman  v.  Struck,  70  Wis.  332, 
Dill  v.  O'Farrell,  45  I  ml.  268, 

v.  Lawrence,  109  Ind.  564, 
Dillard  v.  Central,  etc.,  Co.,  82  Va 


591 
630 
566 

^3l 


734 
Dille 


v.  Lovell,  37  Ohio  St.  415, 


\  .  State.  34  Ohio  St.  617, 
Dillingham  v.  Russell,  73  Tex.  47, 

v.  Skein,  Hempst.  181, 
Dillman  v.  Dillman,  90  Ind.  5S5, 
Dillon  v.  Bell,  9  Ind.   -n. 

v.  Cockcroft,  90  N.  Y.  649, 
v.  Connecticut,  etc.,    Ins.  Co., 
44  Md.3S6, 
Dimick  v.  Campbell,  31  Cal.  23S, 
Dingle  v.  Swain,  15  Col.  izn. 
Dingier  v.  Strawn.  36  111.  App.563, 
Dinwiddie  v.  State,  103  Ind.  101, 


66 
615, 
68] 

534 
°57, 

3^3 

221 

x97 

55" 

82 
16S 
63S 

3*4 
128, 


54s,  549 
760 


v.  Jacobs,  82  Mo.  195, 
Dismore  v.  Atlantic,  etc.,  Co.,  46 

How.  Pr.  193, 
District  of  Columbia  v.    McBlair, 
124  U.S.  320, 

v.  Woodbury,  136  U.  S.  450, 

Diveny   v.   City  of    Elmira,    51    N. 

Y.  506,  '   529. 

Dix  v.  Akers,  30  Ind.431,    597,790,  ,. 

Dixon  v.  Caldwell.  15  Ohio  St.  412,    215 

v.  Dixon,  19  la. 512,  ^2; 

v.  Dukts,  S5  Ind.  434,    70S,  709,  710 


601 

491 
738 


53° 

79' 


v.  Hill,  S  Ind.  147 

v.  Judge,  4  Mo.  286, 
Doane  v.  Glenno,  21  Wall.  ^, 
Dobbins  v.  Baker,  80  Ind.  52,     12 


43 

\3" 
755 
*54i 
361 
551 
5'7 
95 
495 
293, 


Doctor  v.  I  [artman,  74  Iiul. 


v.  Oswalt,  20  Ark.  619, 

V.  State.   14  Ohio  St.  493.      514 

Dobson  v.  Dobson,  7  Neb.  296, 

\  .  Simonton,  100  N.C.  56, 

Dockertv  v.  Huston,  125  Ind.  102, 

626,  648 

■5-  5"-- 

t-x    ,  ,  444-  75  1 

Dodd  v.  Bowles,  3  Wash.  Tv.  11,       440 

v.  Moore.  9]    Ind.  522,  689 

Dodds  v.  V annoy,  61  Ind.  89,  637,  70.' 

Dodge  v.  Coffin,  15   Kan.  277,  <>-- 

v.  Cole,  97  111.  33S,  57 

v.  District  Tp.,  17  la.  85,  540 

v.  Gaylord,  53  Ind.  365,  480,  491, 

r,45 


lii 


TABLE  OF  CASES. 


References  a 

Dodge  v.  Knowles,  114  U.  S.  1/50,      212 

v.  People,  1  Neb.  220,  529 

v.  Pope,  93  Ind.  (No.     629,  712,  748 

v.  Strong,  2  Johns.  Ch.  228,         788 

Dodson  v.  Scroggs,  47  Mo.  285,         735 

l     irk,  6  I  ml.  |.66,  301 

\ .  Conidine,  6  Wall.  158,  26 

\ .  Crocker,  2  1  rid.  575,  491  ■ 

v.  Gildart,  6  Miss.  606,  763 

v.  I  [arvey,  3  Ind.  104,  672 

v.  Herr,  8  Ind.  2  (.,  195 

\.  Makepeace,  8  Blackf.  575,      755, 

76] 
v.  McDonald,  4  Ind.  615,  6S3 

v.  Natchez   Ins.  Co.,  S  S.  &  M. 

197-  763 

v.  Parker,  3  Sm.  &  M.  114,  96 

v.  Peeples,  1  Ga.  1,  763 

v.  Owen,  j  Blackf.  452,         176,   183 

v.  Rue.  4  Blackf.  263,  640 

v.  Smith.  1  Ind.  451,  672,  764 

Dolan  v.  Church,  1  Wyo.  187,  647 

v.  State.  122  Ind.  141,  239.  257, 

291,  293,  527,  647 

Doles  v.  State,  97  Ind.  555,   531,541,  620 

Doll  v.  Feller.  16  Cal.  43:.  483,   735 

Dollman  v.  Munson,  90  Mo.  85,         792 

Dominquez  v.  Mascotti,  7  (  Cal.  269,  6S2 

Donahue  v.  Dryer,  23  Ind.  52 1,  580 

v.    Enterprise,  etc.,  Co.,  23  S. 

C.  608,  446 

Donald    v.   St.    Louis,   etc.,  Co..  52 

la.  411.  1S7 

Donaldson.  Ex  parte, 44  Mo.  149,  673 
Donaldson  v.  Dunn.  87  Ind.  343,  403 
Donelson  v.  Taylor,  8  Pick.  390,  701 
Donley  v.  Camp.  22  Ala.  659,  509,  572 
Donnell  v.  Jones,  13  Ala.  496,  537 

Donellan  v.  Hardy,  57  Ind. 393,  395,  567 
Donnelly  v.  Woolsev.  59  Hun.  618,  630 
Donovan  v.  Huntington,  24  Ind.  321,  45 
Dooley  v.  Martin,  2N  Ind.  [89,  170 

Dooling  v.  Moore,  19  Cal.  81,  109 

v.  Moore.  20  Cal.   141,  94 

Doolittle  v.  State.  93  Ind.  272,  291 

Dooly  v.  Baker.  2  Mo.  A  pp.  325,  512. 

532 

Dorhert  v.  State.  68  Md.  209,  676 

Doremus  v.  Selden,  19  Johns.  213.  602 

Dorman  v.  State.  34  Ala.  216,  512 

v.  State.  56  Ind.  |;  \.  405 

Dorsey  v    Mi  Gee,   ;o  Neb.  037,  7S1 

v.  State.  25  N.  E.  Rep.  350,  27 

v.  Thompson,  ^7  Md.  25,  495 

Dorr  v.  Hill,  62  N.'ll.  506,  '  430 

v.  McDonald,  43  Minn.  458,  075 

v.  Rohr,  82  Va.  359.  413 

Doss  v.  Tvack,  14  How.  297,  98 

Doty  v.  Gillett   4  3  Mich.  203,  414 

v.  State.  6  Blackf.  529,  6S0 


re  to  Pages.] 

Doubing  v.  Polack,  18  Cal.  625,  76 

I  >ougan   \ .  state   1  Ind.),  25  N.  E. 

Rep.    171,  27 

Dougherty  v.  State.  5   Ind.  453,  232,  254 

Douglass   v.   Blankenship,   50   Ind. 

160,  296 

v.  Dakin.  46  Cal.  49.  [68 

v.  Fulda,  54  Cal.  58S,  109 

v.  Keehn.  78  Ind.  199.  179 

v.  McAllister.  3  Cranch,  298.       573 

v.  Negnelona,  88  Tenn.  769,  92, 

109,  444 

v.  State,  72  Ind.  3S5,  251,  294. 

752>77i 

Douglass   County  v.  Bolles,  94  U. 

S.  104.  285 

Douglav  v.  Davis,  45  Ind.  493,  116 

Dougle  v.  Gates,  21  Ind.  65,  632 

Douns  v.  Opp,  82  Ind.  166,  773 

Douthitt  v.  Smith.  69  Ind.  463,  399 

Dove  v.  Commonwealth,  82  Va. 301, 679 
Dow    v.    Merrill    (N.   II.),   18  Atl. 

Rep.  317,  692 

v.  Merrill,  65  N.  H.  248,  690 

Dowdell  v.  Wilcox,  64  la.  721,  740 

Dowell  v.  Caruthers,  26  Kan.  720,62,  91 

v.  Lahr.  97  Ind.  146,  154 

Dower  v.  Church,  21  W.  Va.  23,       619 

Downer  v.  Howard,  44  Wis.  82,         144 

Downard  v.  Hadley,  126  Ind.  131,      413 

Downey  v.  State,  77  Ind.. 87,  6S7 

v.  Washburn,  79  Ind.  242,  187 

Downing   v.  McCartney.    19   U.  S. 

Sup.  Ct.  Rep.  Co.-ed.  757,  122 

Dowling  v.  Crapo,  65  Ind.  209,  636 

Downs  v.  Opp,  82  Ind,  166,  202 

Doval  v.  Landes,  119  Ind.  479,  771 

Doyle,  In  re,  73  Cal.  564,  637 

Do  vie  v.  Riser,  8  Ind.  396,  494 

'  v.  Mulren,  7  Abb.  Pr.  (N.  S.) 

^58-  550 

Dozenback  v.  Raymer,  13  Col.  451,  620 
Drake  v.  State  (N.  J.),  20  Atl.  Rep. 

717-  57S 

v.  State,  S3  N.J.  L.  23,  736 

v.  Wakefield,  11  How.  Pr.  106,  54 

Draper  v.  Davis,  102  U.  S.370,    341,  342 

Dravton  v.  Thompson,  1  Bay.  (S. 

C.)  263,  793 

Dresse  v.  Brooks,  5  How.  Pr.  75,  210 

Dressier  v.  Davis.  7  Wis.  527,  560 

Drey  v.  Doyle.  99  Mo.  459,  690 

Drew  v.  Claypool,  61  Mich.  233,  284 

v.  State,  124  Ind.  9,       253,  255,  579, 

612,  623 
Drinkout  v.  Eagle  Machine  Works, 

90  Ind.  423.                                     197,  078 

Dritt  v.  Dodds.  35  Ind.  63,           675,  706 

Dronilliard  v.  Whistler,  29  Ind.  552,  154 

Dryden  v.  Britton,  19  Wis.  22,  480 


TABLE  OF  CASKS. 


llii 


Dubois  v.  Campau,  28  Mich.  304, 

v.  Johnson,  Si   End.  520, 
Duck  v.  Abbott,  _\|  End.  349, 

v.  Peeler,  74  Tex.  268, 
Dudley  v.  Fisher,  7  Blackf.  553, 

v.  Parker,  55  Hun.  29, 
Duesterberg  v.  State,  116  Ind.  141,    624 

686 

v.  Swartzel,  115  Ind.  1S0, 
Duffv.  Dull",  71  Cal.  513, 
Dugle  v.  State,  100  Ind.  259, 
Duigenan  v.  Chius,  46  Kan.  275, 
Duke  v.  Brown,  18  Ind.  in, 
Dukes  v.  State.  11  Ind.  557, 
Duignan  v.  Wvatt,  3  Blackf.  3S5, 


[References  arc  to  Pages.] 


579 

60 1 

475 
630 
69 


556 

77'J 
53° 
628 
696 
409 
793 


Dukes  v.  Working,  93  Ind.  501,  181,300 
Dumont  v.  Dufore,  27  Ind.  263, 

v.  Lockwood,  7  Blackf.  576, 
Dunbar  v.  Locke,  62  N.  H.  442, 
Duncan  v.  Cravens,  55  Ind.  525, 

v.  Forgey,  25  Mo.  App.310, 

v.  Gainej,  10S  Ind.  579, 

v.  Gerdine,  59  Miss.  550, 

v.  Hollidaysburgh,etc,  Co.,  136 
Pa.  St.  47S, 

v.  Kohler,  37  Minn.  379, 

v.  Lvon,  3  Johns.  Ch.  351, 

v.  State,  SS  Ala.  31, 

v.  State,  S4  Ind.  204,      239,  251, 
Duncombe  v.  Daniel,  S  C.  &  P.  222, 

v.  Powers,  75  la.  1S5, 
Dunderdale  v.  Grvmer,  16  How.  Pr. 


l9 


Dunham  v.  Courtnay,  24  Neb.  62, , 
Dunkel  v.Wehle.  13  Abb.  N.C.476,  320 


.1- 
420 

4IJ 
520 

65 
327 
671 

59 1 
610 

455 
2Sl 
6S0 
6I7 
266 

604 
403 


97 


Dunkin  v.  McKee.  2^  Ind.  447, 
Dunkle  v.  Elston,  71  Ind.  585,     126, 
Dunlop  v.  Ilavden,  29  Ind.  303, 
Dunn  v.  Crocker,  22  Ind.  324, 

v.  Gibson,  9  Neb.  ^13, 

v.  Hubble.  Si  Ind.^Sg, 

v.  State,  29  Ind.  2^9, 

v.  Tousey,  So  Ind.^SS, 
Du  Pont  v.  Davis,  35  Wis.  631, 
Dupree  v.  Perry,  18  Ala.  34,       m, 
Durand  v.  Gage,  76  Mich.  624, 
Durant  v.  Lexington,   etc.,  Co 

Mo.  62, 

Durbin  v.  Haines.  99  Ind.  463, 
Durfee  v.  Abbott.  50  Mich.  479, 
Durgin  v.  Meal,  82  Cal.  595, 
Durham  v.  Bischof,  47  In  J.  211. 

v.  Craig,  7.)  Ind.  1 17,  266. 

v.  Fechheimer, 67  Ind.  35,    520. 

v.  1  [all,  67  Ind.  123, 

v.  State,  1 17  Ind.  477,  35, 

v.  State.  128  Ind.  16, 
Du   Souchet  v.  Dutcher,   113    Ind. 

249.     [59,  182,  24S,  395,636,  692, 
Dushane  v.  Benedict,  120  I".  S 


598 
2S7 
58i 
30S 

73- 
760 

759 
736 

49- 
-7- 
439 

657 
1S4 
625 

467 

;.»s 

-74 
521 
597 

21: 


Dutton  v.  Dutton,  30  Ind.   j.52,  3^5 

v.   I  [obson,  7  Kan.  '1  (- 

Duvall  v.  Martin,  2>  Mo.  App.  526,    75S 
Dwight  v.  St.  John,  25  N.  Y.  203, 
1  )\\  iggins  v.  Cook,  71  Ind.  570, 
Dzialvnski  v.  Bank,  2^  Fla.  44, 
Dye  v.  Mann,  10  Mich.  291, 

v.  State  Mini.), 
Dyer  v.  Hoard,  84  Ind.  542, 
v.  Bradley,  88  Cal.  590, 
v.  Bradley,  89  Cal.  557, 
v.   Brady" (Cal.),  26   Pac.  Rep. 
511, 
Dyer  v.  Brady,  88  Cal.  590, 

v.  Dyer,  87  Ind.  13, 
Dykeman  v.  Budd,  3  Wis.  640, 


7 ; 
672 

168 
267 

308 
326 

45  2 
340 

692 


E 


Ahrens, 


Eagle  Machine  Works 

123  Ind.  2j^, 
Eakle  v.  Smith,  24  Md.  339, 
Ealer  v.  Freret,  11  La.  Ann.  4;^, 
Earl  v.  Dresser,  30  Ind.  11, 
Earle  v.  Earle.  91  Ind.  27, 

v.  Simons,  94  Ind.  573, 
Earp  v.  Board,  36  Ind.  470. 

v.  Commissioners,  36  Ind.  470,  638 
East  v.  Peden,  10S  Ind.  92,  215 

East,  etc.,  Co.  v.  Williams,  71  Tex. 


562 

330 

55  1 
75S 
5"! 
-94 
5" 


444- 


86 


East  Tennessee,  etc.,  Co.  v.  Martin, 

85  Term.  134,  j,,i 

Eastbam  v.  Sallis,  60  Tex.  576,       6S,   73 

Eastman  v.  Godfrey,  15  Kan.  341,      765 

v.  State,  109  Ind.  27V  9 

Easter  v.  Acklemire,  Si  Ind.  163.      122, 

'5  1-  208,  307 

v. Severen, 78 Ind.  540,    120,122.  561 


Eaton  v.  Barnhill,  68  Sliss.  30^, 
v.  Caldwell.  3  Minn.  134, 
\  .  Korea.  75  Cal.  93, 
v.  Ryan,  5  Neb.  47, 

Eberhart  v.  Reister,  96  Ind.  478, 


544 
-94 
4 '3 
75 
394- 


Eberly  v.  Moore,  24  How.  147. 

Ebbersole  v.  Redding,  22  Ind.  232, 

Eddleman  v.  McGlathery  (Tex.),  11 
S.  W.  Rep.  1  too, 

Eddy  v.  Deal.  34  Ind.  1  59, 

Eden  v.  Lingenfelter,  59  Ind.  19, 

Edgell  v.  Francis,  86  Mich.  232. 

Edgerly  v.  Emerson,  23  X.  II.  ;;;. 

Edmonds  v.  State,  34  Ark.  720. 

Edmonson  v.  Bloomshire,  7  Wall. 
[o6,  104. 

Edwards  v.  Beall,  75  Ind.  401, 
v.  Cary,  <>o  Mo.  572, 
y.  Edwards,  22  111.  121. 
v.  Husking.  31  111.  App.  223. 


249 

-"I 

7" 
5'"' 
6ig 

71" 
568 
789 

228 

577 

494 

614 


liv 


TABLE  OF  CASES. 


|  Reft  rences  a 
Edwards  v.  Perkins,  7  Ore.  149,    126,  129. 

35° 
v.Tracy,  62  Pa.  St.  374,  732 

v.  Vandemack,  [3  111.  633,  21 

Egan  v.   Menard,  32    Minn.  273,  41  1 

Egberl  v.  Rush.  7  End.  706,  4S0 

Eggleston  v.  Castle,  42  Ind.  531,  577 
Eicholtz  v.  Wilbur,  4  Col.  434,  131 

Eigenman  v.  Rockport,  etc.,  Asso., 

79  Ind.  41,  771 

1  igenmann  v.  Kerstein,  72  Ind.  Si,  494 
Eighmy  v.  People,  7S  N.  Y.  330,  248 
Eigemann  v.  Swan,  6  Bosw.  668  709 
Eitel  v.  State,  33  Ind.  201,  4 

Elberl  v.  Hoby,  7;  [nd.  in,  768 

Elder  v.  Sidwell,  66  Ind.  316,  261 

Elderkin  v.  Shultz,  2  Blackf.  245,  599 
Eldridge,  Matter  of,  82  N.  V.  162',  516 
Eldridge  v.  State,  12  Tex.  App.  20S,  761 
Election   of  Executive  Officers,  In 

re,  10  Law  Rep.  Ann.  S03,  n 

Elfresh  v.  Guard,  32   Ind.  408,  786 

Elgin  v.  Marshall,  106  U.  S.  57S,         50, 

51,  80 

Elgin  Lumber  Co.  v.   Langman,  23 

111.  App.  250.  456 

Elkhart,    etc.,   Asso.  v.    Houghton, 

103  Ind.  286,  67S 

Elkhart,   City  of,   v.  Wickwire,  87 

Ind.  77,  562 

Elkin  v.  Gregory,  30  S.  C.  422,  269,  557 
Ellerman  v.  New  Orleans,  etc., Co., 

2  Woods,  120,  72 

Elliott  v.  Pell,  1    Paige.  263,  134 

v.  Dycke,  7S  Ala.  150,  126 

Russell.  92  Ind.  526,  702,  747,  7S4 

34 
601 

530,  53 1 

746» 

782,  789 

*33 

178 

525 

479 
181 

602 
528 


v.  Smith,  23  Pa.  St.  131, 
\  .  Stevenson,  21   Ind.  359. 
v.  State,  73  Ind.  10, 
v.  Woodward,  iS  Ind.  1S3, 


Ellis  v.  P.ullard,  11  Cush.  496, 
v.  Ewbanks,  3  Scam.  190,. 
v.  Ford,  5  Blackf.  554, 

V.  Jeans.  26  Cal.  272. 

V.  Keller,  82  Ind.  524. 

v.  McLemoor,   1   Baily  L.  (So. 

Car.-    .3. 

v.  State',  2^  Fla.  702. 
Ellison  v.  Reriek,  125  Ind.  396,  545,  654 
Elmore  v.  McCrary,  So  Ind.  544,      395, 

396 

Elson  v.  O'Dowd,  40  Ind.  300,  590 

Elston  v.  Castor,  101  Ind.  426,  713 

Elting  v.  Gould,  96  Mo.  535.  [55 

Elwell  \.  Dodge,  33  Barb.  330.  546 

v.  Fabre,  13  N.  Y.  Supp.  829,     653 

v.  Fosdick,  134U.  S.  500,     124,  125 

V.  Martin,  32  N't.  217.  589 


re  to  Pages.] 

Elwood,  Town  of,  v.  Citizens,  etc., 

Co.,  114  Ind.  332,  35 

Ely  \.  Board,  112  Ind.  361,  670 

v.  Tallman,  14  Wis.  28,  670. 

Elvton    Land    Co.    v.   Morgan,   SS 

Ala.  434,  638 

Emerick  v.  Armstrong,  1  Ohio,  513,  119 
Emison  v.  Shepard,  121  Ind.  184,  7S3 
Emmefson  v.  Clark,  2  Scam.  489,     754, 

757 
Emmert  v.  Darnall,  5S  Ind.  141,  116 

Emmett  v.  Yandes,  6c  Ind.  548,  285,  72S 
Emmons  v.  Kiger,  23  Ind.  4S3,  215 

Emory  v.  Pease,  20  N.  Y.  62,  407 

Empire,  etc.,  Co.  v.  Engley,  14  Col. 

2S9,  66S 

Endsley  v.  State,  76  Ind.  467,  256,  769 
Engard  v.  Frazier,  7  Ind.  154.  200 

England  v.  McLaughlin.  35  Ala.  590,  130 
Engleman  v.  Arnold,  11S  Ind.  81, 

v.  State,  2  Ind.  91,  102, 

Englis  v.  Furniss,  3  Abb.  Pr.  82, 
English  v.  Devarro,  5  Blackf.  5S8, 

v.  Smock,  34  Ind.  115, 

v.  State,  Si  Ind.  455, 
Eno  v.  Crooke,  6  How.  Pr.  462, 
Enright  v.  Grant,  5  Utah,  400, 
Ensley  v.  McCorkle,  74  Ind.  240, 
Enterprise,   Town  of,  v.    State,   24 

Fla.  152, 
Entrop  v.  Williams,  11  Minn.  3S1, 
Entsminger  v.  Jackson,  73  Ind.  144, 
Ensign  v.  Harvey,  15  Neb.  330, 
Ensminger  v.  Mclntire,  23  Cal.  593, 

v.  Powers,  10S  U.  S.  292, 
Enwright  v.  State,  5S  Ind.  567, 
Epperson  v.  Ilostetter,  95  Ind.  583, 
Epps  v.  State,  19  Ga.  102,  528, 

v.  State,  102  Ind.  539,  253,  530, 
Epstein  v.  Greer,  S5  Ind.  372,  30S, 
Erben  v.  Lorillard,  19  N.  Y.  299, 

Erickson  v.  Elder,  34  Minn.  370, 

Erie  R.  R.  Co.  v.  Stringer,  32  Ohio 
St.  46S, 

Errissman  v.  Errissman,  25  111.  119, 

Erskine  v.  Duffy,  76  Ga.  602, 

Erwin  v.  Bulla,  29  Ind.  95, 
v.  Collier,  3  Mont.  1S9, 
v.  Scotten,  38  Ind.  2S9,        121, 
v.  Scotten,  40  Ind.  3S9, 

Eschback  v.  Hurtt,  47  Md.  61, 

Eshelman  v.  Snyder.  82  Ind.  49S, 


Eshon  v.  Chowan  Co.,  95  N.  C.  75, 
Eslinger  v.  East,  100  Ind.  434. 
Espy  v.  Balkum,  4:;  Ala.  256, 
Eshbach  v.  Hurtt,  47  Md.  61, 


402, 
760 
3-1 

76 

59° 
401 

493 
469 
320 

452 

69 

53 
5-9 
643 
456 
674 
609 
620 
623 

339 
652, 

<?57 

312 

72 
533 
792 

538 
494 
448 
603 

703 
394- 
511 
449 
747 
330 
699 


TABLE  OF  CASES. 


iV 


[References  a 

Essig  v.  Lower,  120  Ind.  239.     1)7.  148, 


»54>  5°4 

274-  73- 

561 

665.  782 

527 


Estep  v.  Burke,  19  Ind.  87, 

v.  Estep,  23  Ind.  1 14. 

v.  Larsh,  21  Ind.  1S3, 

v.  Waterquse,  45  Ind.  140, 
Estey,    etc.,     Co.    v.     Runnels,    67 

Mich.  310,  339 

Estill  v.  Irvine,  10  Mont.  1509,  713 

Estis  v.  Trabue,  128  U.  S.  225  116 

Estus  v.  Baldwin,  9  How.  Pr.  80,  497 
Ethell  v.  Batchelder,  90  Ind.  520,  606 
ICtter  v.  Anderson, 84  Ind.  ^^^.  122,  154 

v.  Armstrong,  42  Ind.  47s.  174 

Eureka  Steam  1  IeatingCo.  v.  Slote- 

man,  67  Wis.  118,  208,  316 

Evans  v.  Adams,  3  Gr.  L.  (N.  J.) 

373-  '  90 

v.  Christopherson,    24    Minn. 

33°,  B  791 

v.  Cleveland,  72  N.  Y.  486,  143 

v.  Commonwealth  (Ky.),  12  S. 
W.  Rep.  76S, 

v.  Evans,  105  Ind.  204, 

v.  Feeny,  81  Ind.  532, 

v.  Galloway,  20  Ind.  479, 

v.  Kilbv,  81  Ga.  278, 

v.  Nealis,  87  Ind.  262, 

v.  Pike,  11S  U.  S.  -41, 

v.  Schafer,  SS  Ind.  92, 

v.  Shafer,  SS  Ind.  92, 

v.  State,  67  Ind.  68, 

v.  State   7  Ind.  271, 

v.  State,  58  Ind.  587, 

v.  White,  53  Ind.  1, 

v.  Young,  10  Col.  316. 
Evansville,  City  of,  v.   Martin,  io^ 
Ind.  206,  397>398~.  7S3 

v.  Thayer,  59  Ind.  324,  (566 

v.  Wilter,  86  Ind.  414,  623 

Evansville,  etc.,  Co.  v.  Barbee,  59 
Ind.  592, 

v.  Crist,  116  Ind.  446, 

v.  Evansville,  15  Ind.  395.    1^4, 

v.  Frank,  29  N.  E.  Rep.  419, 

v.  Gilmore,  1  Ind.  App.  468, 

v.  Lawrence.  29  Ind.  622, 

v.  Montgomery,  85  Ind.  494, 

v.  Mosier,  114  Ind.  447, 

v.  Swift,  12S  Ind.  34, 

v.  Taft  (Ind.),  2S  N.   E. 
44S, 

v.  Wildman,  63  Ind.  370, 
Evarts  v.  State.  4S  Ind.  422. 
Eve  v.  Louis,  91  Ind.  457, 
Everett  v.  Lowdham,  5  C.  i  P,  91,   ^38 

v.   Union   Pacific    R\  .   Co.,   ^9 
la.  243,  536 

v.  W  illiamson.  107  N.  C.  204.     71s. 

7*8 


239 

217 
294,  72S 
104 
455 
53- 
57*.  574 

*59 
766 
782,  792 
679 
298 

635 
672 


444 
690 
285 
76S 
70S 
281 
6S8 
354 
30.  33 

Rep. 

716 

605,  674 

529 

507,  609 


re  to  Pages. \ 

Everit  v.  Walworth   Count v  Bank. 

13  Wis.  ,,,,.  4Si 

Everroad  v.  Gabbert,83  Ind.  489,  718 
Eversdon  v.  May  hew.  85  Cal.  1,  491 
Ewald  v.  Coleman.  19  Ind.  66, 

v.  Corbett,  t,2  Cal.  493,  140 

Ewing  v.  Patterson,  35  Ind.  326,  399.  404 
Exchange   Bank   v.   Ault,  102  Ind. 

322,     ■  672 

Exlev  v.  Berryhill, 63 Minn.  117,  96,  462 
Eyre  v.  Cook,  q  la.  1S5,  557 

Eysamen's  Will,  In  re,  113  N.Y.62,  612 


Faber  v.  Bruner,  13  Mo.  541,  513 

v.  Hovey,  117  Mass.  107,  463 

Fabyan  v.  Russell,  39  N.  H.  399,        261 
Factors,  etc.,  Co.  v.  New  Harbor, 

etc.,  Co.,  37  La.  Ann.  233,  129 

Faden  v.  Fritz,  no  Ind.  1,  53 

Fagan  v.  McTier,  81  Ga.  73,  453 

Fahlor  v.  State,  10S  Ind.  387,  771 

Fahnestock  v.  State,  23  Ind.  231,        530 

Fairbanks  v.  Corliss.  1  Abb.  (N.  Y.) 

150, 

v.  Loring,  29  N.  E.  Rep.  452, 

v.  Me  vers.  98  Ind.  92,  373 

Fairchild  v.  Odell,  3S  Cal.  2S6, 

Fall  v.  Hazelrigg,  45  Ind.  576, 

Falley  v.  Gribbling,  12S  Ind.  no, 


Fancher  v.  Grass,  60  la.  505, 
Fankboner  v.   Fankboner,   20  Ind. 

62,  404, 

Faris  v.  Lampson,  73  Cal.  190, 
Farley  v.  Board,  126  Ind.  46S, 

v.  State.  127  Ind.  419,  255. 

Farman  v.  Borders,  119  111.  22S, 

v.  Lauman,  73  Ind.  56S,        622, 
v.  Ratcliff,  42  Ind.  537. 
Farmers'    Bank   v.   Butterfield,   100 

Ind.  229,  412,  532, 

Farmers',  etc.,  Bank  v.  Lonergan, 

21  Mo.  46. 
v.  Sprigg,  11  Md.  3S9. 
Farmers,  etc.,  Co.  v.  Groff,  S7  Pa. 

St.  124, 
Farmers  Loan  Trust  Co.,    Matter 

of,  129  L.  s.  200.  79, 

Farmers  Loan,  etc.,  Co.  v.  Canada, 

etc.,  Co.,  127  Ind.  250,       67,  301. 

637 
Farnsworth  v.  Coots.  46  Mich.  117. 
Farnum  v.  Pitcher,  151  Mass.  470, 


124 
76S 
74S 
93 
^77 
39 1, 
604 
44S 

554 

373 

62 

618 

-71 
69S 

26S 

626 

697 
192 

537 
5*3 


397. 

.  7 13 
624 

643 

Farrar  v.  Churchill,  135  U.  S.  609.   104, 

345 


V.  Clark,  97  Ind.  447, 

v.  United  States, 5  Pet.  373, 


ivi 


TABJLE  OF  CASES. 


/.'-  ferences  a 

Farrell  v.  Patt'.son,  43  111.  52,  119 

\    Pingree,  5  Utah,  530,  470 

v.  State,  3  l.ul.  573,  525 

\.  state.  7  [nd.  345,        69.  231,  232 


v.  State,  33  I  nd. 18: 

V.  State.  85    [nd.  JJl. 


:5o 

592 

56 

612 

I9 
589 

72 


Farrington  v.  Turner,  53  Mich.  72, 
Farris  v.  Houston.  74  Ala.  162, 

v.  People,  129  111.  521, 
Farwell  v.  Becker,  129  111.  261, 

v.  Myers,  59  Mich.  179, 
Fashnacht  v.  Frank,  23  Wall.  416, 
Fasnacht  v.  German,  etc.,  Asso.,  99 

Ind.  133,  774 

Fassinow  v.  .State,  S9  Ind.  235,  291,  669 
Fathman  v.  Tumulty,  34  Mo.  App. 

236,  *    ~  5S2 

Fat  man  v.  Leet,  41  Ind.  133,  604 

Faught  v.  Faught,  98  Ind.  470,  17,  31 
Faulker  v.  Guild,  10  Wis.  563,  147 

Faure   v.    United    States    Express 

Co.,  23  Ind.  4S,  101,  467 

Faurote  v.  State,  123  Ind.  6,  713 

Faust    v.    City   of   Huntington,  91 

Ind.  493,  561 

Fawkner  v.  Baden,  89  Ind.  587.  306 

Fay  v.  Richards,  30  111.  App.  477,  792 
Fearing  v.  Irwin,  55  N.  Y.  4S6,  190 

Feaster  v.  Woodfill,  27,  Ind.  493,       378, 

647,  669 
Feder  v.  Field.  117  Ind.  3S6,        17,  355, 

356>  358»4IX>  453 

Feeney  v.  Mazelin,  S7  Ind.  226,  732,  781 
Fehring  v.  Swineford,  t,t,  Wis.  550,  96 
Feibleman  y.  Packard,  10S  U.  S.  14,  116 
Felch  y.  Gilman,  22  Vt.  38,  127 

Felger  v.  Etzell,  75  Ind.  417,      394,  397, 

636, 637 

Felkner  v.  Scarlet,  29  Ind.  154.,  570 

Fell  v.  Muller.  7S  [nd.  507,    '  .506 

y.  Rich  Hill  Coal   Mining  Co., 

23  Mo.  App.  216,  414 

Fellenzer  v.  Van  Valzah,  95   Ind. 

12S,  159.167,773 

Fenner  v.  Bettner,  22  Wend.  621,       117 

Ferger  v.  Wesler,  35  Ind.  53,  669 

Ferguson  v.  Board,  44  la.  701,  112 

v.  Dent.  29  Fed.  Rep.  1,  325 

v.  Harrison,  7  Ind.  610,  37 

y.  Landram,  1   Bush.  548,     127,  415 

y.  Rutherford,  7  Nev.  3S5,  537 

y.  State.   |<>  I  nd.  t,3>  622 

Fernbach  v.  City  of  Waterloo,  76 

la.  598,  67S 

Ferrierv.  Deuthman,  51  Ind.  21.  162.  766 
Ferris  v.  Johnson,  27  Ind.  247,  648 

Fertich  v.  Michener,  11 1  [nd.  472,  469 
Fetters  v.   Muncie  Nat.    Bank,    34 

Ind.  251,  A14 

Fewlass  v.  Abbott,  js  Mich.  270.       682 


re  to  Pages.  \ 

Field  v.  Burton,  71  Ind.  3S0,       121, 
348,  361,  443, 
v.   Chicago,   etc.,  Co.,  21    Mo. 
App.  600, 

v.  Holzman,93  Ind.  205,  17,  ^2, 
v.  Malone,  102  Ind.  251,       147, 
y.  People,  2  Scam.  (111.)  79, 
v.  Schricker,  14  la.  119, 
Fielden  v.  People,  12S  111.  595,   177. 
Fields  v.  Hunter,  8  Mo.  12S, 
y.  Moul,  15  Abb.  Pr.  6, 
Fifteenth  Ave,  In  re,  54  Cal.  179, 
Fifth   Avenue  Bank  v.  Webber,  27 
Abb.  N.C.i,  64S, 

Figart  v.  Halderman,  59  Ind.  424, 

v.  Halderman.  7^  Ind.  564, 
Fight  v.  State,  7  Ohio,  180, 
Figures  v.  Dunklin,  68  Tex.  645, 
Filley  v.  Walker.  27  Neb.  500, 

V.  Walker,  44  N.  W.  Rep.  737, 
Finch  v.  Hartpence,  29  Neb.  36S, 
Fineux  v.  Hovenden,  Croke's  Eliz. 

664, 
Finlay  v.  Bryson,  84  Mo.  664, 
Find  ley  v.  State,  5  Blackf.  576, 
Fink  y.  Algermissen,  2^   Mo.  App. 

186, 
Finn  v.  Corbitt.  36  Mich.  31S, 
Finneran  v.  Leonard,  7  Allen,  54, 
Firemen  Ins.  Co.  v.  Schwing  (Ky.), 

11  S.  W.  Rep.  14, 
Firestone  v.  Daniels,  71  Ind.  570, 
v.  Firestone,  7S  Ind.  534,      178, 
v.  Hershberger,  121  Ind.  201, 
v.  Werner.  1   Ind.  App.  293, 
First  Baptist  Church   v.   firanham, 

90  Cal.  22, 
First    Congregational     Society    v. 

Trustees.  2T,  Pick.  14S, 
First    Nat.    Bank  v.   Ashmead,   23 
Fla.  379. 

v.  Briggs,  34  Minn.  266, 

v.  Carter,  89  Ind.  317, 

v.  Carpenter.  41  la.  51S, 

v.  Colter.  6]  Ind.  153,    69S,  732, 

v.  Essex.  84  Ind.  144,     122,  124, 

v.  First  Nat.  Bank,  76  Ind.  561, 

v.  Gary,  [4  S.  C.  571, 

v.  Holt,  S7  Cal.  [58, 

v.  Hummel,  14  Col.  259, 

v.  Hurford,  29  la.  579, 

v.  Murdough,  40  la.  26, 

v.  Omaha,  96  U.  S.  737, 

v.  Redick,  no  U.  S.  224, 

v.  Rogers,  13  Minn.  407,      335, 

v.  Root,  107  Ind.  224,  587, 

v.  Williams,  126  Ind.  423,  653, 

v.  Wright  (la.),  48  N.  W.  Rep. 
9*1 


154. 

448 

191 
604 
154 
57 
30S 

75^ 

7^3 

487 

96 

743 
1S4 

675 
250 

3°9 
597 

345 
7S 

424 
126 

568 

661 
682 

285 

615 
297 
287 
669 
736 

597 

634 

469 
9§ 

712 

675 
7S1 

154 

472 
96 

544 
596 
195 

79' 
318 

51 

462 

qSS 

7S2, 

7S4 

265 


TABLE  OF  CASES. 


lvii 


[Referetn  e&  a 

First   Unitarian  Society  v.   Faulk- 
ner, 91  U.  s.  415,  699 
Fischer  v.  Coons,  26  Neb.  400,  2SS,  736 
v.  Holmes,  123  Ind.  525,       120,  556 
v.  Longbein,  [03  V  V.S4,  449 
v.  Neil,  6  Fed.  Rep.  89,  731 
Fischli  v.  Fischli,  1  Blackf.  360,  73 
Fiscus  v.  Turner,  125  Ind.  46,  771 
Fish  v.  Ferris,  5  Duer,  49,  5SS 
v.  Smith,  12  Ind.  5'    ;.  619 
v.  Weatherwax,  2  Johns.  Cas. 

215,  435 

Fisher's  Estate,  In  re,  75  Cal.523,  100, 

224 
Fisher  v.  Cid  Copper   Mining  Co., 

97  N.  C.  95.  469 

v.  Perdue.  48  Ind.  323,    1S7,  188,  403 

Fisk  v.  Chicago,  etc.,  Co.,  74  la.  424,  62S 
v.  Chicago,  etc.,  Co.  (Ia-)>  4& 

N.  W.  Rep.  1081,  624 

v.  Henarie,  14  Ore.  29,  410 

v.  Patriot,  etc.,  Co.,  54  Ind.  479,  86 

v.  Reigleman,  75  Wis.  499,  156 
v.  Union,  etc.,  Co.,  6  Blatchf. 

362,  7^ 
Fitch  v.  Armour,  14  N.  Y.  Supp. 

3!9'  624 

v.  Bunch,  30  Col.  208,  ysv 
v.  Citizens  National  Bank,  97 

Ind.  211,  2S9 
v.  Creighton,  24  How.  (U.  S.) 

159,  " 

v.  Develen,  15  Barb.  47,  392 

v.  Lothrop,  2  Root.  ^24,      267,  344 

v.  Polke,  5  Blackf.  86,  403 

v.  Rathbun,  61  N.  V.  579,  414 

Fitzenrider  v.  State,  30  Ind.  238,  759 

Fitzgibbon  v.  Lake,  29  111.  165,  495 

Fitzgerald  v.  Evans,  53  Tex.  461,  444 

v.  Center,  26  Ind.  23S,  603 

v.  Goff,  99  Ind.  28,                  620,  691 

v.  Hay  ward,  50  Mo.  516,  532 

v.  Jeroleman,  10  Ind.  33S,    571,  578 

v.  Urton,  4  Cal.  235,  4 

v.  Wellington,  37  Kan.  460,  339 

Fitzgerald,  etc.,  Co.  v.  Fitzgerald, 

137  U.S.  98.  630 

Fitzpatrick  v.  Papa,  S9  Ind.  17,  518, 

535.  596,  730 

Flagg  v.  Sloan,  16  Ind.  432,  85 

Flaherty    v.    Miner,    ^    X.    Y.    St. 

Rep.  681,  545 

v.  Miner,  123  N.  Y.  3S2.  547 

Flatter  v.  McDermitt,  25  Ind.  326,  579 

Fleenor  v.  Driskill,  97  Ind.  27.  74 

Fleetwood  v.  Brown,  109  Ind.  ^67,  562, 

565,  60S 
v.  Dorsey  Machine  Co.,  95  Ind. 

491,  692 

Fleischman  v.  Walker.  91  111.  31S,  58 


re  to  Pages.] 

Fleming  v.  McDonald,  50  Ind.  27S,  588 

v.  State,  1  1    Ind.  234,  $2,"- 

Fletcher  v.  Mansur,  5  Ind.  267, 

v.  Martin,  126  Ind.  55,  712 

v.  State,  49  Ind.  124,  622,  759 

Flint  v.  Burnell,  116  Ind.  4S1,  771 

Flint    River,   etc.,  Co.  v.  Foster,  5 

Ga.  194, 
Floeger  v.  Wiedner,  77  Tex.  311,        600 
Flood  v.  Jovner.  96  Ind.  459.  782 

Fleming  v.  Mershon,  36  la.  413,  in 
Floore  \ .  Steigelmayer,  76  Ind.  479,  391 
Floral  Spring  Water  Co.  v.  Rives, 

14  Nev.  431,  437,  519 

Flory  v.  Wilson,  83  Ind.  391,         61,  Si. 

92-  759 
Flournov  v.  Jerlersonville,  17  Ind.  169,  9 
Floyd  v.  Floyd,  4  Rich.  (So.  Car.) 

Flue'ster   v.   McClelland,    3    C.   B. 

(N.S.)357,  145 

Fogarty  v.  State,  So  Ga.  450,       530,  536 

Fogg  v.  Gibbs,  S  Baxt.  464,  '172 

Folden  v.  State,  13  Neb.  328,      251,  252 

Fontaine  v.  Houston,  58  Ind.  316,      154 

Fonville  v.  State,  91  Ala.  39,  739 

Foot  v.  Glover,  4  Blackf.  313,  704 

Foote  v.  Beecher,  7S  N.  Y.  155,  657 

v.  Lawrence,  1  Stew. (Ala.)  483,666 

v.  Massachusetts,  etc.,  Asso.,39 

Fed.  Rep.  2T,.  630 

Forbes  v.  Porter,  23  Fla.  47,  65,  315 

Forcy  v.  Leonard,  63  Wis.  553,  524 

Ford  v.  Booker,  53  Ind.  395,  393 

v.  Cameron,  19  Mo.  App.  467,   190, 

191 

v.  Ford,  no  Ind.  89,  630,  67S 

v.  Ford,  72  Wis.  621.  491 

Fordyce  v.  McCants,  51  Ark.  509,    568, 

'"-( 
v.  Merrill.  49   Ark.  277,  2SS 

Forelarider  v.  Hicks',  6  Ind.  44S,  665 
Forgav  v.  Conrad,  6  How.  201,  S2,  119 
Forgerson  v.  Smith.  104  Ind.  240.  491 
Forgey  v.  First  Nat.  Bank,  66  Ind. 

123,  72S 

Forster,  etc.,  Co.  v.  Guggemos,  24 

Mo.  App.  444,  51 

Forsythe  v.  Kreuter.  100  Ind.  27,       296, 

725,  76S 
Foster's  Will.  In  re,  31  Mich.  21,  619 
Foster  v.  Berkley,  S  Minn.  351, 

v.  Bringham,  99  Ind.  505.     266,  27') 
v.  1  [inson,  7(1  la.  714,  291,  533 

v.  Pointer.  9  C.  ..Si  P.  71S,  697 

v.  State.   59  Ind.  4S1,  7S9 

v.  State.  41    Mo.  61,  431 

Foulks  v.  Falls,  91  Ind.  315.  305 

Foster  v.  Ward,  7^  Ind.  ^94,      62^,  ^82. 

686 


lviii 


TABLE  OF  CASES. 


References  arc  to  Pages.] 


i>6b 

182 

535 

mi 

9.3 
406 

744 
690 
448 
539 
495 
572 


Fourth  National  Bank  v.  Stout.  1  1  5 

U.S.  684,  79,     So 

Fouty  v.  Morrison,  73  Ind.  333,        198, 

199,  238 

Fovors  v.Johnson.  79  Ga.  553,  618 

Fowle  v.  Alexander,  11  Wheat. 320,  714 

Fowler  v.  Bowery,  etc.,    Hank,   113 

N.  Y.  450,  391,  398,  403 

\  .  Burget,  16  Ind.  341,  628 

v.  Eddy,  [io  Pa.  St.  117,  392 

v.  Farmers,  etc.,  Co.,  21  Wis.  77,  6^8 

v.  Hawkins,  17  Ind.  211, 

v.  Lindsey,  3  Dall.  41 1, 

v.  Strawberry  Hill,  74  la.  644, 

Fox  v.  Allensville,  etc.,  Co.,  46  Ind. 

31. 

v.  Fields,  12  Heisk.  31, 

v.  Hunt.  8  How.  Pr.  12, 

v.  Town  of  Monticello,  S3  Ind. 

483- 
Foxwell  v.  State,  63  Ind.  539, 
Foy  v.  Domec,  33  Cal.  317, 
Fraedrich  v.  Flieth,  64  Wis.  184, 
Frakes  v.  Brown,  2  Blackf.  295, 
Frame  v.  Badger,  79  111.  441, 

v.  Trebble,   1  J.  J.  Mar.  (Kv.) 

205,  23 

Frank  v.  Grimes,  105  Ind.  346,  625, 

686,  693 

v.  Kessler,  30  Ind.  230,  790,  791 

v.  King,  121  111.  250,  ^^ 

v.  Thomas,  35  111.  App.  547,        315 

Frankfort  Bridge  Co.  v.  Williams, 

9  Dana,  403,  56o 

Franklin  v.  Reiner,  8  Cal.  3.40.   153,  448 
Franco-Texan    Land   Co.  v.  Chap- 

tive  (Tex.),  3  S.  W.  Rep.  31,  758 

Frentz  v.  Harrow,  13  Ind.  507,  108 

Frenz,  etc.,  Co.  v.  Mielenz,  5  Dak. 

J36>  266,   345 

Frosh  v.  Holmes,  8  Tex.  29,  680 

Fraser  v.  Jennison,  42  Mich.  206,       617 

v.  Little,  13  Mich.  195,  310 

Frasier  v.  Huhble,  13  Ind.  432,  281,  284 

Frazer  v.  Boss,  66  Ind.  1,  483 

v.  Smith,  6  Blackf.  210,  322 

Frazier  v.  State,  106  Ind.  562,  230 

v.  Venon,  3  Wash.  Ty.  392,         266 

Frear  v.  Bryan,  12  Ind.  343,  601 

Fredericks  v.  Judah,  73  Cal.  604,        623 

Free  v.  Haworth,  19  Ind.  404,  378 

Freeborn   v.  Denman,  2   Hals.  (N. 

J.)  190,  267,  344 

Freedom,  Town  of,  v.  Norris,  12S 

Ind- 377.  712 

Frees  v.  Baker  (Tex.),  6  S.  W.  Rep. 

563.  '     309 

Freeze  v.  De  Buy.  57  Ind.  1S8,  678 

Freitag  v.  Burke,  45  Ind.  38,  401; 

Freligh  v.  Ames.  31   Mo.  '253,  534  | 


30 


Co. 


Freeman  v.  Bowman,  25  Ind.  236,  793 

v.  Hawkins,  77  Tex.  498,  155 

v.  Paul,  105  Ind.  451,  146 

v.  People,  4  Denio",  9,          257,  529, 

578.  737 
v.  Rhodes,  36  Minn.  297, 
v.  St.    Louis     Quarry    Co., 
Mo.  App.  362, 

v.  Tranah,  12  C.  B.  406, 
v.  Weeks,  45  Mich.  335, 
French.  Ex  parte,  100  U.  S.  1, 
v.  Cowan,  79  Me.  426, 
v.    Detroit     Free     Press 
(Mich.),  4S  N.  W.  Rep.  615, 
v.  Edwards,  4   Saw  v.  1215, 
v.  Hay,  22  Wall.  250, 
v.  Howard,  14  Ind.  455, 
v.  Shoemaker,  14  Wall.  314, 
v.  Snell.  37  Me.  100, 
v.  State,  12  Ind.  670, 
v.  State,  Si  Ind.  151, 
Frenzel  v.  Miller,  37  Ind.  1, 
Frevert  v.  Swift,  19  Nev.  400, 
Frey  v.  Michie,  68  Mich.  ^-3, 
Friddle  v.  Crane,  68  Ind.  583, 

v.  Crane,  97  Ind.  497, 
Frisk  v.  Reigelman,  95  Wis.  499, 
Fritch  v.  Klausing  (Kv.),  13  S.  W. 

Rep.  241, 
Fritz  v.  Barnes,  6  Neb.  47^, 

v.  Clark.  80  Ind.  591, 
Fry  v.  Bennett,  16  How.  Pr.  3S5, 
v.  Bennett,  28  N.  Y.  324, 
v.  Currie,  103  N.  C.  203, 
v.  State,  81  Ga.  645, 
Ft.  Madison,  etc.,  Co.  v.  Batavia 

Bank,  77  la.  393, 
Ft.  Wayne,  etc.,  Co. 

Ind.  100, 
Ft.  Worth,  etc.,  Co.  < 

75  Tex.  501, 
Fulkerson   v.   Armstrong,   39 

472, 
Fuller  v.  Aderns,  12  Ind.  559, 
v.  Coats,  iS  Ohio  St.  343, 
v.  Curtis,  100  Ind.  237. 
v.    Indianapolis,    etc.,    Co.,    iS 
Ind.  91, 

v.  Sweet,  30  Mich.  237, 
v.  Wright,  59  Ind.  333, 
Fulmer  v.  Fulmer,  22  la.  230, 
Full/,  v.  Wycoff.  25  Ind.  321, 
Fulwider  v.  Ingels,  87  Ind.  414, 
Furber  v.  Conway,  23  Mo.   App. 

412, 
Furguson    v.    United    States,   etc., 

Co.,  11  N.  Y.  Supp.  738, 
Furnival  v.  Boyle,  4  Russ.  142, 
v.  Stronger,  1  Bing.  N.  C.  68, 


Beyerle,  no 

747. 
Thompson, 


266 

40 

96 

127 

316 
592 

657 
496 

72 
6S0 
601 

3^3 

252 

774 
597 
3°9 
592 
608 

567 

J55 

601 

635 
640 
96 
614 
469 
4'3 

490 

790 

612 
Ind. 

757.  76» 
Si 


691 
593 

296 

34 
30S 

554 
604 

572 
762 

729 

^34 
426 


TABLE  OK  CASES. 


lix 


[References  a 

Furst   v.   Second  Avenue  Rv.  Co., 

72  N.  Y.  542,  652,  657 

G 

Gaar  v.  Millikan,  6S  Ind.  20S,  4S7 

Gabe  v.  McGinnis,  55  Ind.  372,  399 

Gabriel  v.  Mullen,  30  Mo.  App.  464,  121 

Gaff  v.  Greer,  8S  Ind.  122,  399,  549 

v.  Hutchinson,  38  Ind.  341,         520, 

581,718 

Gage  v.  Bailey,  119  111.  539.  489 

v.  Downey,  79  Cal.  140,  6S2 

v.  Du  l'uy,  127  111.  216,  120 

v.  Du  Puy,.  132  111.  134,  560 

v.  Gates,  62  Mo.  412,  191 

v.  Reid.  118  111.  35,  271 

v.  Scales,  100  IH.218,  33 

Gage  Co.  v.  Fulton,  16  Neb.  5,  313 

Gagg  v.  Vetter,  41  Ind.  2js.  539 

(i. lines  v.  White  (S.  Dak.),  47  N. 

W.  Rep.  524,  78S 

Gaither  v.  Wilmer,  71  Md.  361,         582 

Galbreath  v.  Gray,  20  Ind.  290,  599 

v.  Trump,  8^  Ind.  381,  45,  7S 

Gallup  v.  Henderson,  6  N.Y.Supp. 

914,  791 

Galpin  v.  Page,  iS  Wall.  350,  369, 

ij4,  421,  667 

Galvin  v.  State,  56  Ind.  51,  296 

v.  Woollen,  66  Ind.  464,       393,  394 

Galveston,  etc.,  Co.  v.  Cooper,  70 

Tex.  67,  623 

v.  Nolan,  53  Tex.  139,  141 

Gahvav  v.  State,  93  Ind.  161,  525 

Gallagher  v.   llhnelberger,  57  Ind. 

63>  565 

v.  Kilkearv,  29  111.  App.  600,       466 

v.  Southwood,  1  Kan.  143.  757 

Gallettly  v.  Barrackman,  12  End.  27c),  277 

Gallimore  v.  Blankenship,  99  Ind. 

39°,  163,  76S 

Galloway  v.  State,  29  Ind.  442.  533 

v.  Week,  54  Wis.  604,  "  559 

Gallt  v.  Finch,  24  How.  Pr.  193,         101 
Gamble  v.  Gibson.  83  Mo.  290,  176 

Gander  v.  State,  50  Ind.  539,  394 

Gandolfo  v.  State,  11  Ohio  St.  114,  514. 

76s 


Gandolphu  v.  State.  33  Ind.  439. 
Gano  v.  Chicago,  etc.,  Co.,  66  Wis 

1, 
Ganson  v.  Madigan,  15  Wis.  144. 
( hint  \ .  Timmons,  78  Tex.  1 1, 
Garber  v.  Doersom,  117  Pa.  St.  162,  128 

v.  Morrison.  ;  la.  476, 

v.  State,  1)4  Ind.  219, 
Gardner  v.  Case,  111  Ind.  494, 

v.  Fisher,  n;  Ind.  309.  399 

v.  Gardner,  S7  X.  Y.  14. 


655 
611 
446 


771 

255 

71s 

736 

86 


re  to  Pagi  s.  \ 

Gardner  v.  Hanev.  86  Ind.  17, 
V.  llavuie.    (.2   111.  291, 
V.  State,  i)  \    1  nd.  489,  7 

v.  Stover,  43  Ind.  356, 
Garland  v.  Wholebau,  jo  la.  271, 
(jarlington  v.  Copeland,  25  S.  C.  41, 
Garner  v.  Beauchamp,  20  Mo.  318, 

v.  Gordon,  41  Ind.  92, 
Garnhorts    v.    United     States,     16 

Wall.  162, 
Garnet  v.  Rogers,  52  Mo.  145, 
Garretl  v..Shove,  15  R.I.  538, 

v.  State,  109  Ind.  527,  252. 

Garrick  v. Chamberlain,  100 111.  (.76, 
Garrigan  v.  Dickey,  27  X.  E.  Rep. 

7'.v  345- 

Garrigus  v.  Bennett,  9  Ind.  52S, 
Garrison  v.  People.  6  Neb.  274, 

v.  State,  no  Ind.  145. 
Garritee  v.  Popplein,  73  Md.  322, 
( rarsl  v.  State.  68  Ind.  101, 
Garver    v.    Daubenspeck,    22    Ind. 
238,  203,  296, 

Garvin  v.  Daussman,  114  Ind.  429. 
Gaskell  v.  Viquesney,  122  Ind.  244, 
Gasper  v.  Adams,  24  Barb.  287, 
Gass  v.  State.  34  Ind.  1.25, 
Gates  v.  Andrews,  37  N.  Y.  657, 

v.  Salmon.  2S  Cal.  320, 

v.  Scott,  123  Ind.459,    2S7.  ^79. 

v.  Walker,  35  Cal.  289, 
Gatling  v.  Newell,  12  Ind.  116.    177, 

Gaul  v.  Fleming,  10  Ind.  253. 
Guarantee,  etc.,  Co.  v.  Buddington, 

2^,  Fla.  514, 
Gaven  v.  Dopman,  5  Cal.  342, 
Gavisk  v.  McKeever,  ^7  Ind.  4^4. 

Gawtry  v.  Doane,  5]   N.  Y.  90, 
Gay  v.  Davey,  ^  Ohio  St.  396, 

v.  Parport,  101  I'.  S.  391, 
Gaj'lord  v.  La  Fayette,  115  Ind.  423. 
(hi\  lords  v.  Kilshaw,  1  Wall.  81, 
Ga/ette,  etc.,  Co.  v.  Morss,  do  Ind. 

^53- 
Geary  v.  Hangs  (  111.  .  :7X.E.Rep. 

162, 
Gebb  v.  Rose.  [0  Md.  87, 
Gebharl  v.  Burkett,  57  Ind.  578, 

658,659, 
Geiss  v.  Franklin  Ins.  Co.,  123  Ind. 

172, 
Gemmell  v.  Butler.   |  Pa.  St.  252. 
Genella  v.  Relj'ea,  32  Cal.  150,     97, 
Gent  v.  Lynch,  23  Md.  58, 
George  v.  Brooks,  94  Ind.  274.    562, 
v.  Lut/.  35  Tex.  694, 
v.  State.  25  Tex.  App.  229, 
\ .  Swafford,  75   la.  491, 


440 

7'  9 
792 

411 

345 

557 

88 

''77 
306 

309 

471 

178 

774 
447 
7^9 

777 
148 
596 

521 
592 

666 

7; 
728 
16S 
182, 

47; 
614 

146 

",(> 
jo8, 

325 

75' 
47') 
joS 

7/4 

642 
-7i 
56S, 
691 

783 

141 
109 

325 


TABLE  OF  CASKS. 


Georgia,  etc.,  Co.  v.  Nelms,  71  Ga 

Olds,  77  Ga 


// 


301, 
Georgia  R.  R.  Co 

673, 
Gerald  v.  Gerald,  31  S.  C.  171, 

v.  Jones,  7s  [nd.  57s. 
Germain  v.  Mason,  12  Wall.  259 


567 

646 

499 
158 

483 

297 

127 
102 
704 

79 
793 

643 


Gernon  v.  Hovt.  90  V  Y.  631, 

ell's  Appeal,  84  Pa.  St.  238, 
Getman  v.  Ingersoll,  117  N.  V.75, 
Geveke  v.  Grand  Rapids,  etc.,  Co., 

57  Mich.  589, 
Gharkey  v.  Halstead,  1  Ind.  389, 
Gheens  v.  Golden,  90  Ind.  427, 
Gibbs  \.  Coonrod,  54  la.  736, 
Gibbons  v.  Ogden,  6  Wheat.  44S, 
v.  Van  Alstyne,  56  Hun.  639, 
Gibson  v.  Choleau,  50  Mo.  S5, 
.  (  Jarreker,  S2  Ga.  46, 
v.  Hall,  57  Tex.  405, 
v.  Keyes,  112  Ind.  56S, 
v.  Lacy,  S7  Ind.  202, 
v.  Schufeldt,  122  U.  S.  27, 
v.  State,  9  Ind.  264,  792, 

Giermann  v.  St.  Paul,  etc.,  Co.,  42 

Minn.  5, 
Gilbank    v.    Stephenson,    30    Wis. 

155,  3-5 

Gilbert,  Estate  of,  104  N.  Y.  200,  73 
v.  Allen,  57  Ind.  524,  5SS,  603,  604 
v.  Hall,  115  Ind.  549,  630,  6S3 

v.  Southern,  Etc.",  Co.,  62  Ind. 
522, 

v.  \\  eisch,  75  Ind.  557. 
Gilchrist  v.  Rea.  9  Paige,  66, 
Giles  v.  Caines,  3  Caines,  107, 
v.  Canary.  99  Ind.  116, 
v.  Law.  14  Ind.  16, 
v.  Little.  134  U.  S.  645, 
Gilman  v.  Oilman.  35  Barb.  591, 
Gilmer  v.  Bird.  15  Fla.  401, 

v.  Hi-lev.  1  10  I'.  S.  47,        573, 
Gilmore  v.  Board,  35  Ind.  344, 
v.  Bright,  101  N .  C.  382, 
v.  1  lam.  [5  N.  Y.  Sup.  391, 
v.  Pittsburgh,  etc.,  Co.,  104  Pa 
St.  275, 
Gillespie  v.  State.  9  Ind.  380, 
Gillian  v.  Ball,  1.9  Mo.  2 19, 
Gilliman  v.  Eddy,  8  How.  Pr.  133, 
Gillis  v.  Martin.  2  Dev.  Eq.  470. 
Gillooly  v.  State.  58  Ind.  [82,     254 


A',  ferences  arc  to  I',> 

Girault  \.  Adams,  61  Md.  1,  $3- 

30^     Given  v.  Collins.  43  Ind.  271,  700 

Givins  v.  Bradley,  3  Bibb.  192,  775 

266    Glade  v.  Schmidt,  15  111.  App.  51,     639 
314    Glandy  v.  Lanning,  68  Ind.  142,         785 
567    Glantz  v.  City  of  South  Bend,  106 
119,     •    Ind.  305,  293,  715 

132    Glasgow  v.  Hobbs,  52  Ind.  239,  692 

402    Glaspell     v.     Northern,    etc.,     Co. 
75        (Col.).  27  Pac.  Rep.  248,  7S7 

44    Glass  v.  Wiles  (Tex.),  14  S.W.  Rep. 


544 
291 
160 


636    Gleaves  v.  Davidson.  85  Tenn.  380, 
731     Glenn  v.  Fant,  134  U.  S.  39S, 

v.  Glore,  42  Ind.  60,  659,  733 

v.  Shelburne,  29  Tex.  125,  671 

v.  State,  46  Ind.  368,  378.  ^69 


472 


Glidewell  v.  Daggy,  21  Ind.  95, 
Glos  v.  Randolph,  130  111.  245, 
Glore  v.  Hare,  4  Neb.  131, 
Glover  v.  Benjamin.  73  111.  42, 

v.  Collins,  iS  N.J.  L.  232, 

v.  Holman.  3  Ileisk.  519, 

v.  Lyon,  57  Ala.  365, 

v.  Stephenson.  126  Ind. 532 
Goar  v.  Cravens,  57  Ind.  365, 

v.  Maranda.  57  Ind.  339, 
Goddard  v.  Ordway,  94  U.  S.  672, 

v.  Ordway,  4  Otto,  672, 
Godfrey's  Case,  11  Co.  R.  45, 
Godfrey  v.  Craycraft,  Si   Ind.  470, 

v.  Godfrey,  17  Ind.  6,  420, 

v.  Wilson.  70  Ind.  50, 
Goffv.  Scott.  126  Ind.  200, 


213    Goldberg  v.  Utley,  60  X.  Y.  427 


142 

62S 


Hendy 


Golden    Gate,  etc.,   Co. 

Co.,  S2  Cal.  1S4, 
Golden,  etc.,  Co.  v.  Smith,  2  Dak. 

Ty.  374. 

Goldmark  v.Rosenfeld,69  WTis,469, 

Goldsberry  v.  Carter.  2S  Ind.  59, 


70 
447 
100 
126 

477 
672 
130 
549 
727 
670 
461 
337 
272 
562 
670 
187 
622 
635 

120 


119 

66 

281 


Gilpatrick  v.  Glidden,  S2  Me.  201, 
Gilpin  v.  Consequa.  3  Wash.  C.  C. 

18  f. 
Giltrak  v.  Watters,  77  la.  149. 

burg  v.  Kuntx.    15   N.  Y.  Sup. 

237, 


4J3 

4S3 

17 

J4> 

14^    Goldsby  v.  Robertson,  1  Blackf.  247,  709 

614    Gong  v.  Stearns,  16  Ore.  219,  43S 

217    Goodall  v.  Mopley,  45  Ind.  355,         596 

Goodell  v.  Starr,  127  Ind.  198,   154,  2S5, 

504 
Good  Intent,  etc.,  Co.  v.  Hartzell, 

j j  Pa.  St.  277,  260 

Goodman  v.  Kennedy.  10  Neb.  270,  535 

v.  Niblack,  102  U.  S.  556,  354 

v.  Pocock.  15  O^B.  576.  126 

(  Goodnight  v.  Goar,  30  Ind.  41S,         604 

Goodnow  v.  Plumb,  67  la.  661. 

Goodrich  v.  Kriendersdorff.  27  Ind. 

308, 

v.  Ihmton.  29  La  Ann.  372, 
v.  Trustees,  etc.,  2^  Ind.  272. 
Goodseil  v.  Taylor,   |i   Minn.  207. 
v.  Western   Union  Tel.  Co.,  9 
N.Y.  Supp.  425,  597 


5S0 
66 

731 

301 

57- 
39S 

i<V> 

--:■ 
786 

66 


535 
266 


39 1 
616 

6'i6 
661 


TABLE  OF  CASES. 


lxi 


R,  ferences  a 
Goodwin  v.  Bunzle,  ;<>  N.   Y.  Sup. 

Ct.  44i.  3°7 

v.  Fox,  120  U.  S.  77;,  207,  2ii,  319, 

325 
v.  Fox,  129  U.  S.  601, 
v.  Goodwin,  48   Ind.  5S4, 


269 
63,  r.9. 

229,  46S 

L5i 

743-  757 

577,  691 

605 


v.  Hilliard,  76  Iowa,  555, 
v.  Smith,  72  Ind.  113, 
v.  State,  96  Ind.  q<;o, 
v.  Walls,  52  Ind.  268, 

Goodwine  v.  Crane,  41    Ind.  335,  160, 

769»  774 

v.  Hendrick,  29  Ind.  3S3,  179 

v.  Miller,  32  Ind.  419,  566 

Gopsill  v.  Decker,  4  Hun.  625,  639 

Gordon  v.  Brnner,  49  Mo.  570,  587 

v.  Carter.  79  Ind.  3S6,  599 

v.    Donahue     (Cal.),    21     Pac. 

Rep.  970,  675 

v.* Donahue.  79  Cal.  501  6S2 

v.  Ogden,  3  Pet.  Z^  49 

v.  Spencer,  2  Blackf.  2S6,      517.  519 

v.  Stockdale,  S9  Ind.  240,  70S 

Gorsuch  v.  Rutledge,  70  Md.  272,  402 

Gorley  v.  Sewell,  77  Ind.  316,  61 

Goshen,   Citv  of,  v.    England,   119 

Ind.  36S,    "                                    52S,  679 

v.  Croxton,  34  Ind.  239,  36 

Goss  v.  Mather.  2  Lans.  2S3,  5S9 

v.  Turner,  21  Vt.  437,  535 

Gossard  v.  Woods,  98  Ind.  195,  399,  610 

Gosset  v.    Howard,  10  Q^  B.  359,  670, 

677 
Gott  v.  Brigham,  45  Mich.  424,  419 

v.  Powell.  41  Mo.  416,    495,496,  497 

537 

5 
467 

739 

164 

26 

703 

5  '3 
53° 

7'," 
593 


Goudjr  v.  Werbe,  117  Ind.  154, 
Gough  v.  Dorsey,  27  Wis.  119, 

v.  Root,  73  Wis.  32, 
Gould  v.  Day,  94  U.  S.  405, 

v.  Howe,  127  111.  251, 

v.  Raymond,  59  N.  II.  260, 

v.  Weed,  12  Wend.  12. 
Gozlerv.  Georgetown, 6  Wheat. 593, 
Grace  v.  Dempsey,  75  Wis.  313, 

v.  McArthur,  76  Wis.  641, 
Gradin  v.  Le  Roy,  2  Paige,  509, 
Graeter  v.  De  Wolf,  112  Ind.  1,  309,  311 

v.  State,  [05  1ml.  271.  25 ;.  40s 

v.  Williams,  55  1  nd.  461,  470 

Graff  v.  Pittsburgh,  etc.,  Co.,  31  Pa. 

St.  4S9,  701 

Graham  v.  Bayne,  iS  How.  60, 

v.  Board,  25  Ind.  333, 

v.  Davis,  4  Ohio  St.  362, 

v.  Henderson,  35  Ind.  195, 


411. 


V.  Xowlin.  54  Ind.  389, 
v.  Payne,  122  Ind.  40;. 
v.  Spencer,  14  Fed.  Rep.  603. 


476 
445 
535 
60  5, 
782 

55i 
708 

633 


re  to  Pages.\ 

Graham  v.  State,''''''  Ind. 386,     714. 

716, 
v.  State.  28  Tex.  A  pp.  582, 
v.  Swigert,  12  1!.  Mon.522,  32S. 
Grand  Chute,  etc.,  Co.  v.  Wim 

15  Wall.  355, 
Grand   Rapids,  etc.,  Co.  v.  Diller, 
1 10  Ind.  223, 
v.  Ellison,  117  Ind.  234,       520. 
v.  <  rray,  38  Mich.  461, 
v.  Jarvis,  jo  Mich.3oS, 
Grand    Trunk    Ry.    Co.    v.    Cum- 

mings,  106  U.  S.  700, 
Grandolpho  v.  State.  33  Ind.  439, 
Granier  v.  Louisiana,  etc.,  Co.,  42 

La.  Ann.  SSo, 
Granger  v.  Parker,  142  Mass.  1S6. 
\.    Buzick,  3  G.  Gr.  (la.)  570, 
Grant  v.  Connecticut,  etc.,  Co.,  2S 
Wis.  3S7, 
v.  Holmes,  75  Mo.  109, 
v.  Hubbell,  2  J.  &  S.  (N.  Y.) 
224, 

v.  Phoenix   Ins.  Co.,  106  U.  S. 
429,  6S,  72 

v.  Reese,  S2  N.  C.  72, 
v.  Westfall,  57  Ind.  121,     296, 

Granville   County,   etc..    Board    v. 

State  Board,  106  X.  C.  Si, 
Graves,  Ex  parte,  61  Ala.  3S1, 

v.  Campbell,  74  Tex.  576, 

v.  Duckwall,  103  Ind.  560.    1(7. 
Graves  v.  Maguire,  6  Paige,  379, 

v.  State,  i2i  Ind.  357,  251,  254. 
405, 
Gray  v.  Baldwin,  S  Blackf.  164, 

v.  Brignardello,  1  Wall.  627, 

v.  Bridge,  11  Pick.  1S9, 
v.  Cooper.  5  Ind.  506, 
v.  Dickey,  20  Ind.  96, 
Graydon  v.  Gaddis,  20  Ind.  515, 
\ .  ( rray,  3  Litt.  465, 
v.  Montgomery,  17  la.  66, 
v.  Palmer.  2^  Cal.  416,  97, 

v.  Robinson,  90  Ind.  527,      179. 
v.  Schenck,  3  How.  Pr.231, 
v.  State.  78  Ind.  68, 
v.  Stiver,  24  Ind.  174,    10S,  2SS, 

v.  Taylor  (Ind.),  2S  N.E.  Rep. 
220. 
v.  Thomas,  18  La.  Ann.  412. 
v.  Winder,  77  Cal.  525. 

Greadjf  v.  Readj  .  to  Wis.  478, 
Great  Wesl    Ins.   Co.  v.  Pierce.   1 

Wyo.  49. 
Great  Western,  etc.,  Co.  v.  Wood- 
mas,  etc..  Co.,  [2  Col.  46, 


700 
70 

•I"' 


642 

3J4 
320 
560 

3^4 
291 

269 

,  S2 
646 

782 

630 

437 

- 

666 

550 

87 

178, 

495 
441 

s; 

657 
676 
109 
55s 

37', 
306 

7'4 
765 
too 

559 

1 '  3 


lxii 


TABLE  OF  CASES. 


A',  r,  i  ences  a 

Greaves  v.  George,  \g  How.  l'r.  79, 

52  How.  l'r.  58,  601 

.  freer,  58  Hun.  251,  265 

\    State,  50  [nd.  267,  |.o8 

i  h    rg  v.  Moss,  14  Wall.  564,  509 

Gregory  v.  Dodge,  i|  Wend.  593,      744 

v.  Gregorj',89  End.  345,  4°4 

v.  Perdue,  29  Ind.  66,  iSS 

v.  Slaughter,  [9  lnd.  342,     1S3,  493 

v.  State,  94  Ind.  384,  7-  9 

\ .  Van  Voorst,  85   [nd.  10S,         748 

Greelv  \ .  Hanman,  12  Col.  94,  217 

Greeley  v.  Provident  Savings  Bank, 

id;  Mo.  212,  55° 

Green  v.  Blackwell,  5  Stew.  (N.  J.), 
768,  124 

v.  Castello,  35  Mo.  App.  1^7.  208 
v.  Creighton,  10  Sm.  cV  M.  159,  13 
v.  Creighton,  jj  1  low.  90,  7- 

v.  Elliott,  86  [nd.  53,  630 

v.  Fisk,  103  U.  S.  518,  75 

v.  Milbank,  3  Abb.  (N.  C.)  138,  593 
v.  Robinson,  5  How.  (Miss.)  80,  7SS 
v.  Ronen,  62  la.  89,  445 

v.  Smith.  21  111.  App.  198,  383 

v.  Springfield,  130  111.  515,  490,  492 
v.  State,  i"  Neb.  102,  232 

v.  State.  88  Tenn.  614,  57S,  679 

v.  Watkins,  6  Wheat.  260,  141,  272, 

276 

v.  White.  37   X.  Y.  405.  556 

Green  Bay,  etc.,  Co.  v.  Hewitt,  62 

Wis.  316,  128 

Greenfield  v.  State.  113  Ind.  597,  -' >  { 
Greenman  v.  Cohee,  61  Ind.  201,  28S 
( ireenley  v.  State,  66  Ind.  141,  409 

Greenough  v.  Greenough,  11  Pa.  St. 

5i  7-  9 
v.  Shelden,  9  la.  503,  55  | 

Green   River,  etc.,  Co.  \ .  Marshall, 

l_'  [nd.  170.  276 

Greensburgh  v.  Corwin,  58  [nd.518,  36 
Greensburgh,  etc.,  Co.  v.  Sidener, 

|n    In, I.    |2|.  l62.     766 

( rreenup  v.  Crooks,  50  Ind.  410,        4S8, 

59r,<  757 
v.  Stoker.  8  111.  202,  528 

Greenwood  v.  State,  116  Ind.  485.    291, 

647,  668 
Graham  v.  Chantry,  69  la.  72S,  448 

Gresley  v.  State,  123  Ind.  72,  217.  692 
Grice  v.  Ferguson,    1    Stew.  (Ala.) 

7>l 

Griebel  \ .  State,  1 1 1  [nd.  369,  592 

Griesel  v.  Schmal,  55  [nd.  475,  27S,  394 

Griffee  v.  Mann.  62  Md.  2  \.8,  64 

( rriffin  \  .  Barr,  60  Vt.  599,  610 

v.Cranston,  5  Bosw.  658,  639 

v.  I  [arriman,  ~  \  [a.   \  ;<>.  620 

\    i  ii  iilin.  in  [nd.  17".  75, 


re  /<>  Pages.] 

Griffin  v.  Hodshire,  119  Ind.  235,     590, 

599 
v.  Kemp,  46  Ind.  172,  604 

v.  Nelson,  106  N.  C.  235,  446,  454 
v.  Pate,  63  Ind.  273,  525,  647,  786 
v.  Ransdell,  71  Ind.  440,  256 

v.  Reis.  68  Ind.  9.  295 

v.  Veil,  56  Mo.  310,  514 

Griffiths,  Ex  parte,  118  Ind.  S3,       5,  14, 

26,  36 

Griffith  v.  Baltimore,  etc.,  Co.,  44 

Fed.  Rep.  574,  643 

v.  C lift,  4  Utah,  462,  576 

v.  State,  12  Ind.  548,  252 

Grigsby  v.  Purcell,  99  U.  S.  505,        228 

v.  Schwarz  (Cal.),  22  Pac.  Rep. 

1041,  5lS 

Grignon  v.  Astor,  2  How.  319,  12 

v.  Blaek.  45  N.  W.  Rep.  122,       398 

Griggs  v.  Detroit,  etc.,  Co,  10  Mich. 

117.  "2 

v.  Houston,  104  U.  S.  553,  643 

v.  Seeley,  8  Ind.  264,  640 

v.  Smith,  13  N.  Y.  Supp.  273,     657 

Grimes  v.  Camberlain,  27  Neb.  605,    66 

v.  Duzan,  32  Ind.  361,  237,  398,  74S 

v.  Fall,  15  Cal.  63,  697 

v.  Martin,  10  la.  347,  538,  691 

Grinnel  v.  Schmidt,  2  Sandf.  706,      59S 

Grissom  v.  Moore,  106  Ind.  296,         215 

Griswold  v.  Sharp,  2  Cal.  17,  7^i 

Grogan  v.  San   Francisco,  18  Cal. 

590,  305 

Groscop  v.  Rainier,  11 1  Ind.  361,      580, 

624,  625,  686 

Grose  v.  Dickerson,  53  Ind.  460,        638 
Grose  v.  Fowler,  21  Cal.  392,  102 

v.  Haisley  (Ind.),  28N.E.Rep. 
123,  554 

Groton,  Town   of,  v.  Hurlburt,  22 

Conn.  178,  64S 

Grover,  etc.,  Co.  v.  Barnes,  49  Ind. 

1  56,  182,  687 

Groves  v.  Coon,  1  N.  Y.  536,  21 

\ .  Maguire,  6  Paige  Ch.  379,       462 

v.  Marks,  32  Ind.  319,  215,  525 

v.  Ruby,  24  Ind.  418,  4J3 

Grows  v.   Maine,  etc.,  Co.,  69  Me. 

I  [2,  639 

Grubb  v.  State,  117  Ind.  277,      251,  252, 

255,67s,  685 

Grubbs  v.  Morris,  103  Ind.  166,  761 

Gruber  v.  Baker,  20  Nev.  453,  596 

Gruhl  v.  Gruhl,  123  Ind.  86,  67 

Grundy     v.     Pine    Hill    Coal    Co. 

(Ky.),  9  S.  W.  Rep.  414,  481 

Guard  v.  Risk,  11  Ind.  156,  788 

Guardian  Savings  Bank  v.  Reilly, 

S  Mo.  App.  544,  64 


TABLE  OF  CASES. 


Ixni 


\Refet  <  / 

Guarantee,  etc.,  Co.  v.  Buddington, 

2  |   Fla.  514,  122, 

Gudtner  v.  Kilpatrick,  14  Neb.  347, 
Guenther  v.  Peeple,  -4  N.  Y.  100, 
Guernsey  v.  Edwa"rds,26  N.II.  224, 
Guez  v.  Dupuis,  [52  Mass.  454, 
Guice  v.  Stale.  60  Miss.  714, 
Guilford  v.  Love,  49  Tex.  715, 
Guidry  v.  Garland,  41  La.  Ann. 756, 
Guirdy  v.  Garland  (  La.). 6  So.  Rep. 

5.63. 
Guirl  v.  Gillett,  124  Ind.  501, 
Gulf,  etc.,  Co.  v.  Edwards,  72  Tex. 

303.  497. 

v.  Keith,  74  Tex.  287, 
\  .  Pool,  70  Tex.  713, 
Gulick  v.  Connely,  42  Ind.  134, 
Gufletl  v.  Miller,  [06  Ind.  75,       52, 
Guinbel  v.  Pitkin,  113  U.  S.  ^45, 
Gunter  v.  Lallan.  7  Cal.  588.' 
Gunther  v.  Liverpool,  etc.,  Co.,  134 

U.  S.  no, 
Gurney  v.  Brown,  27  111.  App.  640, 
Gutbrecht  v.    Prospect  Park,    etc., 

Co.,  28  Hun.  497, 
Gutperle  v.  Koehler,  S4  Ind. 237,  268, 

H 

H.  G.  Olds  Wagon  Works  v.Combs, 

121  Ind.  62, 
Habel  v.  State.  2S  Tex.  App.  588, 
Habich  v.  Folger,  20  Wall.  1, 
Hablichtel  v.  Gambert,  75  la.  539,    : 

Hacker  v.  Blake,  17  Ind.  97, 
Hackett  v.  State,  113  Ind.  532,    147, 
Iladdon  v.  Haddon,  42  Ind.  378, 
Had  ley  v.  Gutridge,  58  Ind.  302, 
v.  Hadley,  82  Ind.  95,    163,692, 
v.  1  [ill,  73  Ind.  442,  1 17.  212,  361, 
v.  Milligan,  100  Ind.  49, 
v.  Prather,  64  Ind.  137, 
v.  State,  66  Ind.  27^, 
Haebler  v.  Bernharth,  1 15  N.Y.  459, 
Hagaman  v.  Moore,  S4  Ind.  496, 
Hagan  v.  Walker,  14  How.  29. 
Hagar  v.  Reclamation  District,  m 

U.  S.  701. 
Hagard  v.  Wason,  152  Mass.  26S, 
Hagenbuck  v.  McClaskey,  81  Ind. 

577. 
I  lager  v.  Hager,  3S  Barb.  92, 
Hagerty  v.  Lee  (N.  J.),  21  Atl.  Rep. 

933- 
Hahn  v.  Behrman,  73  Ind.  120,    115, 

v.  Kelly,  34  Cal.  391,     421   668, 
Haight  v.  Gay.  8  Cal.' 297. 
1 1. lines  v.  Kent.  1 1  Ind.  120, 

v.  McLaughlin,  [35  V .  S.  5S4, 


124 
306 

''7  1 
127 

314 
250 
670 

78 

5° 

759 

454 
529 

535 
626 

7S1 

137 
489 

643 
612 

146 
269 


557 
^54 
(>33 
288, 
5S0 
561 
2S4 

77' 
734 
76S 
448 

269 

399 
563 
1  65 
7*3 
596 

148 
630 

640 
620 

59i 

141 
670 

4 
614 
662 


are  to  Penes.} 

Haines  v .  State,  7  Tex.  App.  30, 
Hake  v.  Strubel,  121   III.  321, 
1 1. lie's  Appeal,  44  Pa.  St.  438, 
I  [ale  v.  Akers,  [32  I  .  S.  554, 

v.  Matthew,   1  iS  I  nd.  ^27, 
Hall  v.  Brooks.  89  V  Y.  t,3, 
Carter,  74  la.  364, 


102 


75» 
1  1  1 
695 
v.  Chicago,  etc.,  Co.,  65  la.  258,  525 
V.Craig,  12;  Ind.  523  630 

v.  Durham,  109  Ind.  434.  102.  164, 
480,  643,  754 
v.  Durham,  113  Ind.  327.  53,  182 
v.  Gittings,  2  Harr.  t\:  J.  112,  73S 
v.  Hedrick,  [25  Ind.  326,  400 

v.  Henline,  9  Ind.  256,  700 

v.  King,  29  Ind.  205,  35S,  581 

v.  Lyons,  29  W.  Va.  410,  79 1 

v.  Marks,  34  111.  358,  3,  ^2 

Pav  Rock,  etc.,  Co. ,6  Col.  Si.  1 2  | 

773 
619 

4" 
643 
603 

39- 
662 

496 

467 
67. 

45 
709 

750 

7S6 

217 

208 

678 

493 
756 

544 
792 
63S 
306. 

420 

4J3 

-7i 


55. 
616, 


Reed,  17  Ohio,  49S, 

v.  State,  8  Ind.  439, 

v.  Spurgeon,  23  Ind.  73, 

v.  Stevens.  116  N.Y.  201, 

v.  Suitt,  39  Ind.  316, 

v.  Wadsworth,  30  W.  Va 

v.  Weare,  92  U.  S.  728, 

v.  Wells.  54  Miss.  2S9, 
Hall's   Sate,  etc.,  Co.  v.  Rigby,  79 

Ind.  150, 
Halleck  v.  Janden,  34  Cal.  167, 

v.  Weller,  72  Ind.  342, 
Hallet  v.  Jenks,  1  Caine's  Cas.  43, 
Hallock  v.  Portland.  8  Ore.  29, 
Halloran  v.  Halloran  (111.),  27  N. 
E.  Rep.  82, 

v.  State,  So  Ind.  5S6, 

v.  Texas,  etc.,  Co.,  40  Tex.  465, 
Halsey  v.  Darling,  13  Col.  1, 

v.  Flint,  15  Abb.  Pr.  367, 
Halstead  v.  Brown,  17  Ind.  202, 
Halstead    Lumber   Co.   v.   Sutton 

(Kan.),  26  Pac.  Rep.  444, 
Ilalton  v.Jones,  7s  Ind.  466, 
Ham  v.  Carroll,  17  Ind.  442, 

v.  Greve,  41  Ind.  531,  207, 

'307.  3'4- 3-5 
v.  Rogers,  6  Black.  559. 
Hamilton  v.  Ames.  74  Mich.  298, 
v.  Barricklow,  96  Ind.  398, 
v.  Burch,  28  Ind.  233,     176,  17S,  775 
v.  Byram,  122  Ind.  2S3,  712 

v.  Elkins,  46  Ind.  213,  297.  785 

v.  Hart,  125  Pa.  St.  142,  127 

V.  Moore,  }  Dall.  371,  228 

v.  Noble.  1  Blackf.  iSS,  404 

v.  Pease,  3S  Conn,  nq,  620 

v.  Prescott,  73  Tex.  565,      486,  4S7 
v.  Ross,  25  Neb.  630,  610 

v.  Shoaff,  99  Ind.  63,  693 

v.  Summers,  13  r>.  Mon.  11,        699 


lxiv 


TABLE  OF  CASKS. 


A',  ferences  are  to  P 


Hamilton  v.  Winterrowd,  4. 


I  ml. 
524,567 

Hamlin  v.  Reynolds,  32  HI-**,        £g 
Hamlyn  v.  Nesbit,  37  [nd.284,   64,  2^9, 

Hammv.  Romine,  98  Ind.  77,     53I>7S8i 

793 
Hamman  v.  Mink,  99  Ind.  -77-  ;J 

Hammon  v.  Sexton,  69  Ind.  37-        Il0„ 

[20,    I  p 

Hammond  v.  Hopping,  13  Wend 

5°v.  Hudson  River,  etc.,  Co.,  20 
Barb.   ;;s.  , 

,    Pinklow,  149  Mass.  356, 
v.  Schiff,  100  N.  C.  161, 
Hammond.  City   of,  v.  New   York, 

etc.,  Co.,  126  Ind.  597-  35>  45.  59.  2I7 
Hammons  % .  Bigelow,  115  In< 1.  3<>3>  59b 
Hampshire,  etc.,  Bank  v.  Billings, 

17  Pick.  87, 
Hampson  v.  Fall,  64  Ind.  3S2 
Hampton  v.  Rouse,  13  Wall.i»7, 
Hamrick  v.  Danville,  etc.,  Co.,  30 

Ind.  147,  _  T     , 

v.  Danville,  etc.,  Co.,  41   Ind. 


323 

62  S 

7'4 

36 


697 

601 
556 
739 


327 

595 
116 


Hardaway  v.  Biles.  1   Sm.  &   Mar. 

Harderle  v.  City  of  La  Fayette,  20 

Ind.  234. 
Harden  v.  Fisher,  1  Wheat.  300, 
Hardenbrook  v.  Ligonier.95  Ind.  70 
Hardie  v.  Kretsinger,  17  Johns.  293,  697 

391 
6S9 
3i3 
57S 
39- 
99 


209, 


63 


277 


Hardin  v.  Clark.  32  S.  C.  480, 
v.  Helton.  50  Ind.  319, 
v.  Owings,  1  Bibb.  214. 
v.  State,  22  Ind.  347. 
v.  Trimmer,  30  S.  C.  391, 
v.  Watson,  Ss  Tenn.  593, 

Harding  v.  Brophy  (111.),  24  N.  I 

Rep.  558'  T    . 

V.  Cowgar,  127  Ind.  245, 

v.  Griffin,  7  Blackf.  462, 

v.  Whitney,  40  Ind.  379, 
Hardt  v.  State",  13  Tex.  App.  426, 
Hardy,  In  re,  35  Minn.  193, 

v.  Blazer,  29  Ind.  226, 

v.  Chipman,  54  Ind.  591,     2S7, 

v.  Miller,  89  Ind.  440, 
Hargens  v.  Goodman.  12  Ind.  629, 
Hargrove  v.  John,  120  Ind.  285, 

v.  Washington.  32  S.  C.  584, 
Harker  v.  State,  8  Blackf.  540, 
Harkev  v.  Cain,  69  Tex.  146, 


160 
562 
601; 
528 
246 
[,  114 
601 
728 
287 

675 

638 

452 
700 

581 


Hanaw  v.  Bailey,  83  Mich.  24,    319,  321    Harkness  v. Hyde, 98  U.S.  476, 630,  631 
Hancock  v.  Heaton,  53  Ind.  Ill, 


250 

756 


601 
37 

J59 
27 

669 

655 


v.  State,  ■  \  Tex.  App.  392, 
v.  Town   of  Worcester    (\  t.), 
18  Ail.  Rep.  1041, 
Hand    v.    Atlantic,    etc.,    Bank,   55 
How.  Pr.  231, 
v  Tavlor,  4  Ind.  409. 
Handlan  v.  McManus,  100  Mo.  124, 
Handly  v.  Anthony.  5  Wheat.  374, 
Hanes  v.  Worthington,  14  Ind.  320 
Hanf  v.    Northwestern     Asso.,    70 

Wis.   150, 

Hanlan  v.  Edwards,  13  Ind.  430,  2S2,  284 
Hanna  v.  Aebker,  84  Ind.  411,  269 

V    Board.  29  Ind.  170,  02 

v    Ewing,  3  Blackf.  34,  4°4 

Hannah  v.  Dorrell,  73  Ind-  \U>-    '7s-  775 
Hannibal,   etc.,  Co.  v.  Moore.  37 

Mo.  338,  733 

1 1  annum  v.  State,  38  Ind.  32,     188,  393, 

401 

Hanrick  v.  Patrick.  119  U-  s-  J5". 
Hans  v.  Louisiana.   I  3  |    U.  S.  I, 
1  [ansel  \     Morris.  1  Blackt.  307, 
Hansher  v.  Hansher,  94  Ind.  20S, 
Hanson  v.  Elton,  38  Minn.  493. 

v.  Frickes,  70  Cal.  283, 

v  Vol!  (Cal.),  21  Pac.  Rep. 971,  3b3 
Harbaueh  v.  Albertson,  102  Ind. 69.  128 

306 
Harbor  v.  Morgan,  4  Ind.  158.  700 


Harlan  v.  Edwards,  13  Ind.  430,  281 
Harlan  v.  Stout,  22  Ind.  488,  496,  599 
Harmann  v.  Ilartmetz.  12S  Ind.  353,  02b 


755 
250 
70c, 
770 
3°9 
455 


119 

3°5 
602 
300 
568 
402 


Herman  v.  Jeffries,4  Mont.  513 

Harman  v.  State,  n  Ind.  311. 

v.  State,  22  Ind.  331,  256, 

Harmon  v.  Chandler,  3  la.  150, 
v.  Herndon,  99  N.  C.  477, 
v.  Lexington,  32  S.  C.  5§3» 

Harmony  Club  v.  New  Orleans  Gas 
Light  Co.  (La.),  7  So.  Rep.  538, 

Harness  v.  State,  57  Ind.  I,        - 

Harpending  v.  Shoemaker,  37  Barb. 

Harper  v.  Archer,  4  Sm.  &  Marsh. 

99> 

v.Bibb,  45  Ala.  670, 
v.  Jacobs,  51  Mo.  296,      6,291,  668 
v.  Pound,  10  Ind.  32, 
v.  State,  101  Ind.  109,  691,  792, 
v  Tahourdin,  6  M.  &  S.  383, 
Harrell  v.  Harrell,  117  Ind.  94, 

v.  Seal,  121  Ind.  193, 
Hamman  v.  Queen    Ins.   Co.,  49 
Wis.  71, 

v.  Wilkins,  20  Me.  93, 
Harrington  v.  Roberts,  7  Ga.  510, 
v.  Sedalia,  9S  Mo.  583, 
v.  State.  76  Ind.  112, 
v.  State.  S3  Ala.  9, 


46 
703 

537 

315 

30 


793 
3X3 
274 

77i 

580 
619 

272 
c6o 
7S1 
655 


TABLE  OF  CASES. 


Ixv 


[References  a 
Witherow,  2  Blackf. 


Rep. 


Harrington 

37. 
Harris  v.  Boone,  69  Ind.  300, 
v.  Carmack,  6  Dana,  242, 

v.  Central  K.  Co.,  7S  Ga.  525, 
v.  Clafflin,  36  Kan.  ^43. 

V.  Clark.  4  How.  l'r.  78, 
v.  Doe,  4  Blackf.  369, 

v.  Hannibal,  etc.,  Co.,  37  Mo 

307. 

v.  Howe  (Ind.),  27  N.  E 

S61, 
v.  Ingledew,  3  P.  W.  9S, 
v.  Musgrove,  7-  Tex.  iS, 
v.    Muskingum,    etc..     Co., 

Blackf.  267, 

v.  People,  130  111.  457, 

v.  Regester,  70  Md.  109, 

v.  Rivers,  53  Ind.  216, 

v.  Rupel.  14  Ind.  209, 

v.  Shaffer,  92  N.  C.  30, 

v.  Tomlinson  (Ind.),  30  N.  E. 

Rep.  214, 
v.  Vandeveer,  21  N.J.  Eq.424, 
v.  Wilson,  7  Wend.  57, 
v.  Wright,  123  Ind.  272, 
v.  Brooklyn,  etc.,  Co.,   100   N. 

Y.  621, 
v.  Farnsworth,  1  Heisk.  751, 


79 1 
7S2 
266 
536 
155 
73 
54' 

5S7 

30 
134 
669 


2S7 
6S1 

3-1 

404 

7S1,  792 

646 


775 

4 

700 

395 


41 
74 


v.  I  [edges,  60  Ind.  266,  368,  375,  446 


v.  McCormick,  69  Cal.  616, 
v.  Moselv,  31  Tex.  60S, 
v.  Moss,  41  La.  Ann.  239, 
v.  Phoenix,   etc.,   Co.,   S3  Ind. 


399 
141 

7S 

4SS 
597' 


Harrison  v.  Price,  22  Ind.  165, 

75".  758>  759 

v.  Thurston,  11  Fla.  307,  71 

v.  Trader,  29  Ark.  85,  459 

v.  Young,  9  Ga.  359,  731 

Harrison  School  Tp.  v.  McGregor, 

96  Ind.  185,  162.  4.38,  511,  591,  792 

Harrod  v.  Dismore,  127  I  ml.  338,      504 
Harshman    v.    Armstrong.  43    Ind. 

126.  99,  105.  214,  263,  ^ 

Hasted  v.  Dodge,  75  la.  402,  472 

Hart  v.  Barnes,  24  Neb.  7S2,  215 

v.  Burch,  130  111.  426,  601 

v.  Burch,  31  111.  App.  22,  444 

v.  Burnett,  15   Cal.  530,  474 

v.  Foley,  67  la.  407,  707 

v.  Heilner,  3  Rawle,  407,  701 

v.  State,  26  Ind.  100,  1S2 

v.  State,  14  Neb.  572,  534 

v.  Walker,  77  End.  331,  288 

Harter  v.  Eltzroth,  in  Ind.  159,  167,69s 

Hartford,  City  of,  v.  Chipman,  21 

Conn.  488,  590 

Hartford   Citv,  etc.,  Co.         Lowe, 
125  Ind.  275.  520,  641 


rr  to  I'. 

Hartford   Tp.   v.  Bennett,  10  Ohio 

St.  441,  635 

Hartlep  v.  Cole,  toi  Ind.  |;\  301, 

307.  397i  685,  <    7 
Hartlepp  v.  Whitely  (Ind.),  2S  N. 

E-  Rep.  535, 

Hartman  v.  Eveline,  63  Ind.  344,       748 

v.  Greenhow,  102  U.  S.  672,        305 

v.  1  had  v.  57  I  ml.  545.  590 

Hart 00k  v.  Crawford,  85  Va.  413,        7S 

Harvey  v.  Brickbin,  50  Hun.  376,      601 

v.  Cook.  24   111.  App.    134,  576 

v.  Donnellan,  36  Ind.  501. 

v.  Fink,  in  Ind. 249,  70,9s,  126,450 

v.  Laflin,  2  1  ml.  477,  674 

v.  Parry,  S2  Ind.  2<<^,  693 

v.  Sinker,  35  Ind.  341,  769 

v.  State,  40  Ind.  516,  731 

v.  Tyler,  2   Wall.  328,     691,  746,  762 

Hasbronck    v.    City  of   Milwaukee. 

21  Wis.  219,  6S9 

Haskins  v.  St.  Louis,  etc.,  Co.,  109 

U.  S.   106,  208,  31S 

Hasselback  v.  Linton,  17  Ind.  545,     164 

Hasselman  v.  Allen,  42  Ind.  257.       687 

v.  Carroll,  102  Ind.  153.  723 

Hastings  v.  Halleck,  10  Cal.  31,        44S 

Hatch  v.  Judd.  29  la.  95.  646 

Hathaway  v.  Hathaway,  2  Ind.  513,  101 

v.  Hemingway,  20  Conn.  190.       535 

Ilatten  v.  Robinson,  4  Blackf.  479,     525 

Hatton  v.Jones,  7S  Ind.  466,  691 

Hawes  v.  Clark,  84  Cal.  272,  640 

v.  People,  124  111.  560,  16.  441 

v.  People,  129  111.  123,  7;^ 

v.  Pritchard,  71  Ind.  166,  320 

v.  State,  SS  Ala.  37,  ;2S 

Hawkins  v.  Edwards,  1  la.  296,  523 

v.  Governor,  1  Ark.  570,  9 

v.  Hawkins,  2S  Ind.  60,  106,  349 

v.  Heinzman,  126  Ind.  600,         274, 

345-  781 
v.  Massie,  62  Mo   5S2,  64,  68 

v.  McDougal,  126  Ind.  544,         103, 
146,  150,  266,  28 1 
v.  State.  24  Ind.  2SS,  47 

v.  State,  125  Ind.  570.  3,  7 

v.  State,  126  Ind.  294,  335,  462 

V.  State.  2;  X.  E.  Rep.  SiS,    '  4 

Hawley  v.  Harrell,  19  Conn.  142,      127 
v.  Simmons,  101  111.  654,  467 

V.  Smith.  45   Ind.  183,     491,  563,606 

Hawthorne    v.    East    Portland,     12 

Ore.  210,  325 

v.  State,  2S  Tex.  App.  212,  120 

Haughey  v.  Wilson,  1  Hilt.  (N.Y.) 

250.    "  386 

Ilaun  v.  Wilson,  2S  Ind.  296,  300 

Hauser  v.  Roth,  37  Ind.  89,        163,  401, 

403.  525.  (.47 


Ixvi 


TABLE  OF  CASES. 


'  Reft  >'< 
Hausmelt  v.  Patterson,   124  N.  Y. 

$49-  596 

.  v.   Niblack,  80  Ind.  \<<:  691 

.hurst  v.  Ritch,  [19  N.  V.  621,  391 
Haverly,   etc.,    Co.  v.    Howlutt,   6 

574,  r,7° 

Hay  >  it,  3  Ohio,  3S4,  582 

"  v.  Short,   |<)  Mo.   139,  398 

v.  State,  58  Ind.  337,     521,  635,  736 

n's  Case,  2  Dall.  109  n,  5 

Hayden  v.  Hayden,  \<<  Cal.  332,         523 

'  v.  Songer,  s(l  Ind.  46,  571 

v.  Wood-,  t6  Neb.  306,  7S2 

Haves.  Ex  parte  (Ala.),  9  So.  Rep. 

435 

nx  Ind.  1,  768 

v.  Hayes,  7;  Ind.  395,  33r» 

v.  fosephi,  26  Cal.  535,  327 

v.  "Ken von,  7  R.  I.  531,  7S1 

v.  Martin.   (.5  Cal.  559,  479 

v.  Missouri,  1  jo  I  .  S.  68,  303 

v.  Nourse,  107  N.  V.  ^77,     129,  350 

n  .  (  >'Brien,  jo  N.  E.  Rep.  601,    353 

\     Solomon,  90  Ala.  520,  64S 

v.  Sykes,  120  Ind.  180,     250,291,647 

Haymond  v.  Saucer,  84  Ind.  3,  395 

Haynes  v.  Nowlin  (Ind.),  108 

v.  State.  45   Ind.  424,  788 

v.  Thomas,  7  [nd.38,  480 

I  lav-  v.  Ford,  55  Ind.  52,  421 

"  v.  Hostetter,  125  Ind.  60,     713,  719 

v.  Hynds,  2S  Ind.  531,  571 

v.  fohns,  42   Ind.  505,  261 

v.  State.  77    Ind.  450,  254,  40S 

v.  Walker.  90  Ind.  105,  296 

v.  Wilstach,  101  Ind.  100,     207.  213, 

3-S<  339 

Haywood  v.  Hedrick,  94  Ind.  3.(0,     394 

Hazelhurst  v.  Morris,  28  Md.  67,         68 

Hazleton  v.  Union  Bank,  32   Wis. 

34-  658 

Hazelett  v.  Butler    University,  84 

Ind.  J}0.  562 

Hazewell  v.  Couser,  Si  N.  Y.  630,     6S3 
Heacock  v.  Hosmer,  [09  111.  245,       646 
v.  Lubuke,  107  111.  396,  525 

Head  v.  Longworthv,  15  la.  235,       6S9 
Headl)  v.  Board,  1  Blackf.  116,  673 

Heady  v.  Vevay,  etc.,  Co.,  52  Ind. 

"  7-'  539 

v.  Wood.  6  Ind.  Sj.  375 

I  leagv  v.  Black,  90  End.  53  (.,  s7 

V.  State.  85    I  lid     260,  703 

Hearman  v.  Owen,  42  Mo.  App.387,  545 

I  learn  v.  State.  '.J   Ala.  2l8,  672 

Hearne  v.  City  of  Greensburgh,  51 

Ind.  119.  530 

1  [1  aston  v.  Cincinnati,  etc.,  Co.,  16 

Ind.  275,  52S,  53O 

v.  Colgrove,  3  Ind.  265,  64S 


re  to  Pages.] 

Heath  v.  Erie,  etc.,  Co.,  S  Blatchf. 

347^  6o1 

v.  Keyes,  35  Wis.  668,  567 

v.  State.  101    Ind.  512,    24S,  251,  257 
Heaton  v.  Knowlton,  65  Ind.  255,     330, 

453^  -155 
Heavenridge  v.  Moudy,  34  Ind.  28,  470, 

597 
I  havener  v.  Saeger,  79  Ga.  471,  546 
Heberd  v.  Myers,  5  Ind.  94,  514 

v.  Wines,  105  Ind.  237,  732 

Heckle  v.  Crewe.  12^  111.  58,  560 

Heckert's  Appeal,  13  S.  ,v  R.  48,  225 
Heckett  v.  Lathrop,  36  Kan.  661,  156 
Hiddirigh    v.    Dempsea,    12    App. 

Cas.  107-  356 

Heddrick  v.  Heddrick,  74  Ind.  7S,      202 
Hedderich  v.  State,  101  Ind.  564,       102 
Hedges  v.  Armistead,  60  Tex.  276,    313 
Hedrick   v.  D.  M.  Osborne  &  Co., 
99  Ind.   143.  394.  567»  773 

v.  Hedrick,  28  Ind.  291,  756 

Heed  v.  Knox.  S  La.  Ann.  73,  560 

I  [eeser  v.  Miller,  77  Cal.  192,  736 

Heffner  v.  Day,  54  Ark.  79,  69 

Hefner  v.  Northwestern,  etc.,  Co., 

123  U.  S.  747.  4S9 

Heffren  v.  Jayne,  39  Ind.  463,  304 

Hege  v.  Newsome,  96  Ind.  426,  279,  296, 

397.  69° 
Ilegler  v.  Faulkner,  127  U.  S.  482,  41S 
Heilbron  v.  Fowler  Switch  Co.,  75 

Cal.   |J<>,  100 

Heilman  v.  Sh'anklin,  60  Ind.  424,  614 
Heinev  v.  Garretson,   1    Ind.   App. 

54S,"  265,  579,  708 

Heinlen  v.  Cross,  63  Cal.  44,      335,  462 

v.  Southern,  etc.,  Co.,  65  Cal. 

304,  447 

Heitman  v.  Schuk,  40  Ind.  93,  393 

Heizer  v.  Kellev,  73  Ind.  582.      159,  169 

Helden  v.  Helden,  9  Wis.  557,    325,  341 

Helena  v.  Albertose,  S  Mont.  499,     73S 

Helm  v.  Boone,  6  J.  J.  Marsh.  351,    456 

v.  First  Nat.  Bank,  91  Ind.  44,  301, 

78S 

Helphenstine  v.Vincennes  National 

Bank,  65  Ind.  582,  102,  281 

Helms  v.  Wagner,  [02  Ind.  385,  74S,  749 
Hellebush  v.  Blake,  119  Ind.  349,  Si 
Heller  v.  Clark.  103  Ind.  591,  221,  361 
Hemmenwav  v.  Corey,  16  Vt.  225,  112 
Hemphill  v.  Black,  oo'  N.  C.  14,  449 
v.  Collins.  1 17  111.  396,  438 

Hemsley   v.  Myers,  45   Fed.   Rep. 

2S3,    "  59* 

I  b  instead  v.  Cargill  (Minn.),  4.8  N. 
W.  Rep.  686,    "  319 


TABJLE  OF  CASES. 


References 

Henderson,  Ex  parte,  S4  Ala.  36,     438, 

630 

6  Fla.  279,  16,  519 

Henderson  v.  Barbee,  6  Blackf.  26,  273, 

546 
v.  Benson,  141  Mass.  218,  20S 

\    Benson,  41  Miss.  218,  320 

v.  Burch,  10  Ind.  54,  446 

v.  Dickey,  76  Ind.  264,        709,  714 
v.  Dickey,  50  Mo.  161,  ^2 

v.  Halliday,  10  Ind.  24,  214,  261,  263, 

333 

V.  Henderson,  no  Ind.  316,  562 
v.    Henderson,   3    Hare's    Ch. 

100,  596 

\ .  Reed,  1  Blackf.  347,  '767 

v.  State.  60  Ind.  296,             249,  [.07 

v.  Winchester,  31  Miss.  290,  4S9 
Hendrick  v.  Whittemore,  105  Mass. 

23>  '47.  285 

Hendricks  v.  Frank,  86  Ind.  27S,       122, 

!54.  36l>  532 

v.  Gilchrist,  76  Ind.  369,  590 

v.  State,  73  Ind.  482,    '  11S 

Hendrickson  v.   Sullivan,  2S  Neb. 

790,  448 

v.  Walker,  32  Mich.  68,  625 

Hendry  v.  Hendry,  32   Ind.  349,  635 

Henley  v.  Mayor,  6  Bing.  100,  5S2 

v.  McNoun,  76  Ind.  380,  749 

Ilenline  v.  People,  Si  111.  269,  2S6 

Hennessey  v.  State,  23  Tex.  App. 

340,  763 

Hennies  v.  Vogel,  S7  111.  242,  617 

Henning  v.  State,  106  Ind.  3S6,         250, 

253.  527i  579.  66S,  744 

v.  State,  24  Tex.  App.  315,  761 

Hennv   Buggy   Co.  v.   Patt,  73  la. 

767,  291 

Hepburn  v.  Dunlop,  1  Wheat.  179,      ^2 
Henri  v.  Grand,  etc.,  Co.,  59  Mo. 

581,  191 

Henry  v.  Carson,  96  Ind.  412,  569 

v.  Dean,  6  Dak.  7S,  73S 

v.  Hunt,  52  Ind.  114.  nS 

v.  Ricketts,  1  Cranch.  C.  C.  545,  579 

v.  Sioux  City,  etc.,  Co.,  70  la. 

233-  622 

v.  State  Bank,  3  Ind.  216,  37 

v.  Thomas,  11S  Ind.  2^,  770 

Henshaw   v.   McDowell,  99   N.  C. 

181,  20S 

v.  Robertson,  1   Bailey  (S.  C.) 

Ch.  311,  4S9 

Henslie  v.  State,  3  Heisk.  202,  2^1 

Henson  v.  Ott,  7  Ind.  512,  601 

v.  Walts,  40  Ind.  170.  69,  SS 

Herbert  v.  City  of  North  Hampton, 

[52  M;bs.  266.  eed 

Herbison  v.  Taylor.  21;  Neb.  217,       754 


are  /<>  Pages.] 

Herd  v.  Cist  (Kv.j,  12    S.  W.   Rep. 

466, 
I  [ereth  v.  Hereth,  100  Ind.  35,    26 

I  I.  ill   \  .  (  tfggs,   [2]    1ml.  471. 

Hering  v.  Chambers,  103  Pa.  St.  [72 
Herkimer  v.    McGregor,   126    Ind. 

247. 
Herman  v.  Francis  Co.,  7  Mo.  App. 

562,  |p 

Herndon  v.  Howard.  9  Wall.  604.       ■;., 

IJ5 
Herrick  v.  Butler,  30  Minn.  156, 

v.  Racine,  etc.,  Co.,  43  Wis.  93,  92 
Herring  v.  State,  1    la.  205,  707 

Ilerron  v.  Cole,  25  Neb.  493, 

v.  Cole,  25  Neb.  692,  ^97 

Hershey  v.  Knees,  75  Cal.  115,  782 

Ilershman    v.    Hershman,  63    Ind. 

451,  292,695,718 

Herstein  v.  Walker,  90  Ala.  477,  490,  493 
Hertzfield  v.  State,  6  Ind.  23,  249 

Ilervev  v.  Parry,  ^2   Ind.  2S3,  567 

v.  Savery,  48  la.  313,  (.7^ 

Herzeberg  v.  Sachse,  60  Md.  426,         54 
Herzogg  v.  Chambers,  61  Ind.  333,  103, 

[i  5 

Heshion  v.  Scott,  94  Ind.  570,    2'.s,  337 

Hess  v.  Cole,  23  N.  J.  L.  116,  650 

v.  Dean,  66  Tex'.  61   ;.  66S 

v.   Lowery,    122   Ind.  225,  23    N. 

E.  Rep.  156,  i_pj 

v.  Hess,  119  Ind.  66,  749 

v.  Lowrey,  122  Ind.  225,      539,  540 

Hessey  v.  Heitkamp,  9  Mo.  App.  36,  306 

Hessian  v.  State,  iio   Ind.  58,  760 

Hessin  v.  Heck,  S8  Ind.  449,  610 

Hestres  v.  Brennon,  50  Cal.  210,         1^ 

Hewitt  v.  Brown.  21  Minn.  163,         635 

v.  Buck,  t  7   Me.   i_|7,  704 

v.  Filbert,  116  U.  S.  142,  212 

v.  Powers,  S4  Ind.  29^,  ^66 

v.  Young  (la.),  47  N.  W.  Rep.  ' 

10S4,  597 

Hexter  v.  Schneider,  14  Ore.  1S4.      ^22 

Hey  v.  Schooley.7Ohi0.pt.  II,  (S.      p  j 

Heyl  \.  State,  tog  liul.  589,        2^,   529 

Hey  man  v.  McBurney,  66  Ala.  51, 

Heymes  v.  Champlin,  52  Mich.  2;,    16S 

Heyneman  v.  Blake,  19  Cal.  ^79,        26 

Hiatt  \.  Ballinger,  59  Ind.  303,  70 

v.  Renk,  6  |  End.  590,  6  ;s 

Ilibbitts  v.Jack,  97  Ind.  ^70,      479,  491 

Hickam  v.  People  (111.),' 27  N.  E. 

Rep.  SS,  746 

1  liekenbottom    v.    Delaware,   etc., 

Co.,  122  N.  Y.  91,  41 1 

Hickey  v.  State.  23  Ind.  21,        251,   524 

Hickox  v.  Elliott,  28  Fed.  Rep.  117,  330 

Hicks  v.  Bell,  j  Cal.  219,  4 

v.  Ellis,  65  Mo.  176,  6S0 


lxviii 


TABLE  OF  CASES. 


Rt  t>  ><  na  s  arc  to  JPagi  $ . 


Iliiks  v.  Michel,  15  Cal.  107, 

v.  State,  s3  1  nd.  1 
Hidden  v.  Jordan,  2S  Cal.  301, 
1  Ik'l  \ .  I  [iel,  40  K;n 
Higbee  v.  Moore,  66  [nd.  263, 


429, 


462 
766 

678 


\ .  Rodeman,  2  s  N .  E.  Rep.  4  \i 

Higgins  v.  Carlton.  28  Md.  115,  5S4 

v.  Kendall,  73  Ind.  522,       267,  2N9. 

396 

Higgs  v.  Hunt.  75  Mo.  106,  486 

Higham  v.  Vanosdol,  101  Ind.  160.  703 

v.  Warner,  69  Ind.  1549,  401 

Highfill  v.  Monk.  M   Ind.  203,  6S3 
Hill  v.  Chicago,  <  ti  ..  Co..  129  U.S. 

'7"-  445 

v.  Chipman,  59  \\  is.  211,  521 

v.  Corcoran.  15  Col.  270,  620 

v.  Covell,  1   N.  V.  522,  709 

v.  Finigan,  77  Cal.  267,  550 


v.  First  Nat.  Bank, 42  Kan. 364,  160 
v.  Hagaman,  S4  Ind.  287, 

v.  Haverstick,  17  Ind.  517. 

v.  Hazen,  93  Ind.  109, 

v.  Heirsmons,  17  Hun.  470, 

v.  Hill,  6  Ala.  [66, 

v.  Holloway,  52  la. 678, 

v.  Hoover.  5  Wis.  3S6, 

v.  Jamicson,  16  Ind.  125,     296, 


x.  Lewis,  45  Kan.  162, 

v.  Louth.  109  Ind.  315, 

v.  Marsh.  46  Ind.  218, 

v.  Newman,  47  Ind.  1S7, 

v.  Xisbet,  100  Ind.  341, 

v.  Pressley,  96  Ind.  447,       101, 

v.  Roach.  72  Ind.  57.       70,  451, 

v.  Starkweather.  30  Ind.  434, 

v.  State,  64  Ga.  453, 
v.  Weisler,  49  Cal.  146, 
Hildreth  v.  Gwindon,  10  Cal.  490, 
Hillenberg  v.  Bennett,  SS  Ind.  540, 
Hilliard  v.  Beattie.  59  X.  II.  462, 
v.  McDaniels,  48  \'t.  122, 
v.  Oram.  106  N.  C.  407. 


755 
54 
506 
402 
in 

180 

767, 

76S 
601 
74S 

597 
162 
289 

149 

792 

1-0. 

248 
620 

789 

*53 

221 

53r> 

I  12 

66 


Hillistad  x.  Hostetter,  46  Minn.  393,  657 
Hilltown  Road,  18  Pa.  St.  233.  '  64S 
Hilton  v.  Southwick,  17  Me.  303.  621 
1  linckley  v.  Oilman,  etc.,  Co.,  94  U. 

>''7-  lrS)   x36 

Hinds  v.  Harbou,  ^S  Ind.  121,  67S 

v.  Tweedle,  7  How.  Pr.  27S,        587 

Hines  v.  Driver,  89  Ind.  339,  70,98.  174 

v.  Driver,  100  Ind.  3 15.    70.  791,  7^2 

v.  Durer,  89  Ind.  339.  783 

Hinkle  v.  Ball,  34  Ark.  177,  434 

V.  Davenport.  38  la.  355.  ^2p, 

v.  Holmes, 85  Ind. 405,  312.  313,  339 

v.  Margerum,  50  Ind.  240,  361,  399. 

779 


Hinkle  v.  Shelley,  100  Ind.  SS, 
Hinson  v.  Adrain,  91  X.  C.  372, 
Hinton  v.  Pritchard,  107  V  C.  128, 
v.  Whittaker,  101  Ind. 344,  i2JS, 
Hintrager  v.  Mahoney,  78  la.  537, 

Hintz  v.  Graupner  (111.),  27  N.E. 

Rep.  935, 
1  lipes  V.  State.  73  Ind.  39, 
Hipp  v.  Babin,  19  How.  271, 
Hitchins  v.  Eardlev,  L.  R.,  2  Prob. 

,v  Div.  24S, 
Hitchings  v.  Van  Brunt,  3S  X.  Y. 

33  Si 
I  lite  v.  Lenhart,  7  Mo.  22, 
Hoag  v.  Alleghany  City,  21   Pitts. 

L.  Jr.  46, 

Hoar  v.  Leaman  (Pa.),  1^  Atl.  Rep. 

7.0. 
Hobart  v.  Hobart,  86  X.  Y.636,  116, 
Hohart  College  v.  Fitzhugh,  27  X. 

Y.  130, 
Hoberg  v.  State.  3  Minn.  262. 
Hobbs  v.  Beckwith.  6  Ohio  St.  252, 
\ .  Hoard.  1 16  Ind.  376, 
v.  Cowden,  20  Ind.  310, 
Hobler  v.  Cole,  49  Cal.  250, 
Hockett  v.Johnson,  87  Ind.  251, 
Hockstedler    v.     Hockstedler,    10S 

Ind.  506, 
I  lodge  v.  Drake,  60  Hun.  577, 
Hodges  v.  Bales,  102  Ind.  494.  531, 

v.  Cooper,  43  X.  Y.  216, 

v.  Kowing,  58  Conn.  12,      413, 

v.  Templer,  6  Mod.  191, 

Hodgden  v.  Commissioners,  10  Kan. 
637,  200, 

Ilodkins  v.  Mead.  119  X.  Y.  166, 

Hodgson  v.Jeffries,  52  Ind.  334. 

I  toes  v.  Boyer,  108  Ind.  494. 

Iloev  v.  Pierson,  67  Wis.  262, 

Ilogan  v.  Robinson,  94  Ind.  13S, 
v.  Ross,  11  How.  294, 

Hoge  v.  Richmond,  etc.,  Co.,  93  U. 
S.  1, 

Hogshead  v.  State,  120  Ind.  327, 

574i 

Hogue  v.  McClintock,  76  Ind.  205, 

Hogg  v.  State,  7  Ind.  551,  541, 

Hohenthal  v.  Watson,  28  Mo.  360, 
Ilohorst    v.     Hamburg  -  American 

Packet  Co..  3S  Fed.  Rep.  273, 
Hoke  v.  Applegate,  92  Ind.  470,  533, 
Holborn    Union    v.    St.    Leonard's 

Parish,  2Q.B.  Div.  145, 
Holbrook  v.  Connelly,  6  Ohio  St. 

i<n. 
Holcroft  v.  King,  25  Ind.  352,     179, 


274 
461 

44'' 

548 

124. 

'-5 

62S 
662 

594 

7"1 

4S3 
788 

9 l 
610 


191 
619 

73 

548 
620 

793 


274 
736 
577. 
787 

691 

551 
650 

755 
582 

692 

595 

66 

120 

337 

3SS 
570, 
79 1 
379' 
467 
618 
54 

633 

566 

439 

638 

557 


TABLE  OF  CASES. 


I  x  i  x 


A',  ferences  are  to  Pages. J 


Holding  v.  Smith,  42  Ind.  ;  ;>■. 
Holdridge  v.  Sweet,  23  [nd.  [18, 
Holladay  v.  Elliott,  3  Ore.  [40, 
Holland  v.  Challen,  no  U.  S.  25, 
\ .  Jones,  9  Ind.  495, 
v.  Union  County,  68  la.  56, 
Ilollett  v.  Evans,  28  Ind.  61, 
Thomas,  90  Ind.  398, 


599 
523 

1 1 

59s 

675 

69 

5^7 


266 
603 
7 
5'  17 
545 

6-70 


Holliday  v.  Henderson, 67  Ind.  103,  435, 

5 'J1 

Hollingsworth  v.  Koon,  117  111.  511,  353 

v.  State,  79  Ga.  605,  535 

v.  State,  8  [nd.  257.  261,  263 

v.  State,  111   Ind.  2S9,  239,  251 

Holloran  v.  Midland    Rv.  Co..   28 
N.  E.  Rep.  549,  9 2,  103,  138,  150, 

-"7-  -'.',•  364i  447,  44^ 

Holly  v.  Perry,  94  N.  C.  30,  320 

Holloway  v.  Gallias,  49  Cal.  149,       141 

v.  Holloway,  103  Mo.  274,  75 

v.  State,  S3   Ind.  554,     528,  531,  679 

v.  Stephens,  1  Hun.  30S,  497 

Holman   v.  Herscher   (Tex.),  16  S 

W.  Rep.  984, 

v.  Langtree,  4.0  Ind.  349, 
v.  State,  105  Ind.  513, 
Holmes  v.  Boyd,  90  Ind.  t,t,2, 
v.  Braidewood,  82  Mo.  610, 
v.  Campbell,  12  Minn.  221, 
v.  Fairbanks,  17  Wis.  434,   546,  559 
v.  Gayle,  1  Ala.  517.  765 

v.  llinkle.  63  Ind.  518,  700 

v.Jones,  121  N.  Y.  461,  617 

v.  Phenix,  etc.,  Co.,  49  Ind.  356,  277 
v.  State,  SS  Ind.  145, 
v.  Stateler,  57  111.  209, 
v.  Turner  Falls  Co.,  150  Mass 

v.  Wallace,  46  Pa.  St.  266, 
Holstein  v.  Adams,  72  Tex.  4S5, 
Holt  v.  Edmondson,  31  Ga.  357, 

v.  Simons,  14  Mo.  App.  450, 

v.  State.  11  Ohio  St.  691,     514 

v.  Hoard.  55  Ind.  194, 
Holten  v.  Holten,  5  Wkly.  Dig.  14,  549 
Holton  v.  Kemp,  81  Mo.  661,  677 

Holtzclaw  v.  Ware,  34  Ala.  307,         224 
Holzman  v.  Hibben,  100  Ind.  338,     7^2 
Homan  v.  Brinckerhot'.i  Denio,  184,  41  | 
Home,  etc.,  Co.  v.  Caldwell.  S^  Ala. 
607,  402 

v.  Camden,  2  H.  Bl.  533.  441 

Home  Ins.  Co.  v.  Duke,  75  Ind.  535,  394 
Home    Life    Ins.   Co.    v.    Dunn,   20 

Ohio  St.  175,  72 

Home     for     Inebriates    v.     Kaplan 

(Cal.),  24  Par.  Rep.  119,  64 

Hon  v.  State.  89  Ind.  249,  400 

Honneycutt    v.    St.  Louis,  etc.,  40 
Mo.  App.  67  |.  265 


5-" 

739 
192 
610 
93 
767 
5X7 
39! 


I  [ood  v .  Pearson,  67  [nd. 
Hook  v.  Linton,  io  Pet.  107, 
Hooker's  Estate,  In  re,  7;  la.  377, 
Hooker  \ .  Brandon,  66  Wi 


■17" 
Jl5 

2<jl 
6lO, 
638 
697 


76l 

524 

40S 
28 

56 
663 

45° 


v.  Eagle  Hank,  30  N.  Y.  83, 

v.  Village  ofBrandon,  75  Wis.8,  (>l\ 

IIook>ett    v.    Amoskeag,    etc.,  Co., 
44  N.  II.  105,  577 

Hooper  v.  Beecher,  109  N.  Y.  609,  12 \. 

1 1-5 
v.  State  (Tex.),  16   S.  W.  Rep. 
655, 
Hoot  v.  Spade,  20  Ind.  326, 
Hoover  v.  State,  no  Ind.  349, 

v.  Wood,  9  Ind.  2S6, 
Hopcraft  v.  Keys,  9  Bing.  613, 
Hope  v.  Blair,  105  Mo.  S5, 
Hopkins  v.  Hopkins.  39  Wis.  165, 

v.  Stanley,  43  [nd.  553,  692,  693,  695 
Hopkinson  v.  Steel.  12   \'t.  582,  ^7 

Hopson  v.  Murphy,  4  Tex.  248,  4S7 
Hoptv. United  States,  104  U.  S.631,  6S9 
1 1  opt  v.  Utah.  [20  U.  S.  430,  531 

Hord  v.  Noblesville.  6  Ind.  55,  301 

Horn  v.  Indianapolis  Nat.Bank,  125 

Ind.  3S1,  149,  156,  411'),  488,  $<)^,  650 
Hornaday  v.  Shields,  rig  Ind.  201,  394 
Hornbergerv.State,  5  Ind.  300,  232.  249. 

401,  744 
Hornbuckle   v.    Stafford,  in  U.  S. 

38?i  5°9.  573 

Horicon  Shooting  Club  v.  Gorsline, 

73  ^Vis-  196-  77 

Hormann    v.    Ilartmetz,    12S    Ind. 
353-  295,  609,  752, 

Horner  v.  Doe,  1  Ind.  130, 

v.  Hoadley.  97  [nd.  600,       743, 
Hornsbv  v.  South  Carolina  R.Co., 

26  S.  C.  1S7, 
Horton  v.  Green,  104  N.  C.  400, 
v.  Sawyer,  59  Ind.  587, 
v.  Wilson, 25  Ind. 316,  162,  299,  767, 
782,  786 


75S 
672 
760 

53* 
454 
350 


Hose  v.  Alhvine,  91  Ind.  497, 
Hostetler  v.  State.  62  Ind.  1S3, 
Hoston  v.  Ducker, 86  Ky.  123, 
Hotchkiss  v.  Jones,  4  Ind.  260, 

v.  Piatt,  66  X.  Y.  620, 

v.  Piatt,  7  Hun.  ;'.. 
Houck  v.  Graham,  106  [nd.  195, 566,   oN 
Houk  v.  Allen.  126  Ind.  568,       620,   787 

\.  Barthold,  73  [nd.  21,  284,  <<j<>.  ''71 
Hough  v.  Western,  etc.,  Co.,  1  Biss. 

425. 

Houghton,  Appeal  of.  42  Cal. 
v.  Joins.  1   Wall.  702, 

House  v.  Duncan,  50  Mo.  4^3. 

v.  McKinney,  54  [nd.  240.  623 

v.  Wright,  22  liui.  183,  70 


301 

394 

91 

186 

n6 

270 


61 


lxx 


TABLE  OF  CASES. 


249, 


[References  a 
Houseman    v.  Roberts,  5  C.  ..V    P 

Houston  v.  Briner,  59  Ind.  25, 

\ .  Bruner,  39  Ind.  376, 

\ .  Moore,  3  Wheat.  433, 

v.  Starr.  1 J  Tex.   1 

v.  Ward,  8  Tex.  12  (., 

v.  William-.  [3  Cal.  24, 
Howard  v.  Carpenter,  22  Mil 

v.  Kopperl,  7 )  Tex.  |.g  |. 

v.  Russell,  7^  Tex.  171. 

\.  Ross  I  Wash  ),  jn  Pac.  Rep 
526, 

\ .  Sexton,  1   Denio,  440, 

v.  Winter-.  3  Nev.  539. 
Howe  v.  Briggs,  17  Cal.  385, 

v.  Fleming,  1  23  Ind.  2^2. 
Howe, etc.,Co. v.  Rosine,87  111.  165,  657 
Howell  v.  Crutchfield,  Hemp.  99,      434 

\ .  Foster,  25  111.  App.  42. 

v.  Mill-.  53  N.  Y.  $22,  515 

v.  Morlan,  7S  111.  162, 
Howes  v.  Halliday,  10  Ind.  339, 
I  [owie  v.  State.  1  Ala.  1 13. 
Howk  v.  Allen.  126  Ind.  568, 
Howland  v.  Reeves.  2^  Mo.  App 

■15s- 
Howley  v.  Smith,  45  Ind.  1S3, 
Howorth  v.  Scarce.  29  Ind.  27S, 
I  Io\  ey  v.  Chase,  52  Me.  304, 

V.  McDonald,  109  U.  S.  1  qo, 

'   1  16 
v.  State.   1  i<;  I  nd.  386, 


70,   7S4 

199 
7" 
4N7 
7.  9 
192 
676 

3lF 


755 
64S 
79.5 
788 

7~~ 


60 
516 

673 
782 
119 

5IG 


79i 
562 

394 
57" 
116, 

34' 
58,  479 


Hoxie  v.  County    Commissioners, 

25  Me.  333,"  441 

Hoyt,  Kx  parte,  13  Pet.  279.  438 

I  1 1  ■■  !   v.  William-.   1 1    Mo.  270,  7''-: 
Hubbard  v.  Camperdown  Mills,  26 

S. C.  581.  650 

Hubbell  v.  Broadwell,  8  Ohio,  120,  495 

v.  McCourt,   1  1  Wis.  58  1  in 

\.  Skiles,  [6  tnd.  138,           599,  782 

v.  Woolf,  15  1  nd.  204,  603 

Huber  v.  State.  57  hid.  341,  786 

i  [ubertz  \  .  Stat.-.  ;n  1  mi.  37  |,  362 

Hubble  v.  Osborn,  31  [nd.  249,  ~,y> 

\.  Wright,  -'3  Ind.  322,  554 

I  !  1  bier  v.  Pullen,  <>  Ind.  273,  520 

Nelson,  5  |  Ala.  12,  1 
Huckell  v.  McCoy,  38  Kan.  53, 
Huckshold   v.  St.   Louis,  etc.,  Co., 

mi  1  Mo.  548, 

Hudelson  v   Am  0  Ind.  99.  308 

Hudgins  v.  Kemp    [8  How.  530,  20S 
Hudnil  v.  Nash,  1  C.  E.  Green  (X. 

.1-).  550,  134 

I ludson  \     I '  Ind. 391,  159 

v.  I  Douser,  123  I  nd.  3119,  570 

v.  S  da.  2^^,  674 

v.  state.  1  Blackf.  529,  530 


00 

(.2  2 


623 


re  to  Pages.] 

Hudson  Canal  Co.  v.  Pennsylvania 

Co.,  8  Wall.  270, 

I  lull"  v.  Cole,  4^   I  ml.  300,  480, 

v.  Gilbert,  1  Blackf.  19, 
x.  Lafayette,  108  Ind.  14, 
v.  Shepard,  58  Mo.  242, 

Huffman  v.  Hughlett,  1  1   Lea.  549, 
v.  Indiana    Nat.    Dank,  51    Ind. 

394. 

v.  State,  28  Tex.  App.  174, 
Huffmond  v.  Hence.  1  28  I  nd.  131,  532 

Hufford  v.  State,  6  Ind.  ]'^, 
Hughes,  Ex  parte,  n  1  U.  S.  147, 
Hughes'  Appeal,  90  Pa.  St.  60, 
Hughes  v.  Aim-lee.  28  Ind.  346, 

v.  Commonwealth  (Ky.),  14  S. 
W.  Rep.  682, 
v.  Detroit,  etc.,  Co.,  7S  Mich. 

399- 

v.  I'  eeter,  18  la.  142, 

v.  Galveston,  etc.,  Co.,  67  Tex. 

v.  Hinds,  69  [nd. 93,  179, 

v.  Hughes,  =54  Pa.  St.  240, 
v.  McKee,  1  A.  K.  Marsh.  28, 
v.  Moore,  17  Mo.  App.  14S, 
v.  People,  1 10  111.  330, 
v.  Swope  (Ky.),  1   S.  W.  Rep. 

394- 

v.  Wheeler,  76  Cal.  230,      640, 
Hull  v.  Green,  26  I  ml.  38S, 

v.  Louth,  109  Ind.  315,  725,  743, 

v.  Westcutt,  17  Fla.  280, 
Hulton  v.  Upfill,  2  II.  L.  Cas.  674, 
Humbert  v.  Brisbane,  25  S.  C.  506, 
Humble  v.  Bland,  6  Term.  R.  255, 
Hume  v.  Conduit,  70  Ind.  598,    147, 
Hummel  v.  Tyner,  70  [nd.  84, 
Humphrey  v.  Baker,  103  U.  S.  730, 

v.  Ball,  1  Gr.  (la.)  204, 
Humphreys  v.  Klick,  49  Ind.  1S9, 
v.  State.  75    [nd.  469, 
v.  Stevens,  49  Ind.  491, 
Humphries  \.  Davis,  too    I  ml.  271, 

265, 

Hunderlock  v.  Dundee,  etc.',  Co.,  SS 

[nd.  139.  [16, 

Hum-  \.  Reeves,  2  Gr.  (la.)  190, 

Hungerford  v.  Cushing,  S  Wis.  32  |, 

Hunnicutt  v.  Peyton,  102  U.S.  333, 
Hunsinger  v.  Hofer,  no  Ind.  390, 

Hunt  v.  Blackburn,  127  U.  S.  774, 
v.  Blanton,  89  Ind.  38, 
v.  Brennan,  1  I  [un.  2  13, 
v.  Campb  11,  83  Ind.  48,       215, 
v.  Danforth,  2  Curt.  C.  C.  592, 


305 

''15 
755 
32'. 
633 
589 

268 

-39 
-fl47 
-54 
438 
490 
786 

64S 

492 

260 
180 
310 
781 
191 
528 

44 

C>S3 

5-4 
700, 

77-' 
447 
171 
399 
632 

284 

57" 
45°- 

45  1 
77" 

7"; 

79- 
5r>r> 

218, 

3'M 


498 

743 

537. 

676 

455 
7" 
634 

525 
590 


ABLE  OF  CASES. 


lxxi 


[References  are  to  Pages.] 


Hunt  v.  Hawlcv,  711  hi.   [83, 

v.  Kemper,  9  S.  W.  Rep.  S03, 

v.  Lane,  ■»  I  nd.  2  j.S, 

\ .  State,  |')  ( ra.  255, 

v.  State,  28  Tex.  App.  149, 

Hunter  v.  Chrisman,  70  Ind.  439, 

3r,I> 
v.  Fitzmaurice,  102  Ind.  449, 

297. 
v.  I-  rench,  86  I  ml.  320, 
v.  Harris,  24   111.  App.  637, 
v.  Hatfield,  68  I  ml.  416,        162, 
v.  Hunter,   loo   111.  519, 
v.  Leavitt,  36  [nd.  141, 
v.  McLaughlin,  43  Ind.  38, 
v.  Miller,  17  [nd.  88, 
v.  Pfeifer,  108  1ml.  197, 

v.  State,   101    1  ml.  400,  256, 

v.  Trench,  86  Ind.  320, 
Huntington  v.  Colman,  1    Blackf. 

34s-  57i. 

v.  Conkey,  23  Barb.  21S,       615, 
v.  Drake,  24  [nd.  347, 
Huntington,  City  of,  v.   Breen,  77 

Ind.  29, 
Huntington  Co.  v.  Kaufman  (Pa.), 

17  Atl.  Rep.  595, 
Hupp  v.  Mclnturt',  4  111.  App.  449, 
Hurd  v.  Karl,  4  Blackf.  184, 
v.  Newton,  36  Mich.  3^, 
Hurlbut  v.  Hurlbut,  12  Ind.  346, 

v.   Thomas,    55    Conn.    181,    10 

Atl.  Rep.  556, 
Hum,  Ex  parte  (Ala.),  9  So.  Rep. 

5x5, 
I  lursen  v.  I  <ehman,  35  111.  App.  489, 
Hursh  v.  Hursh,  99  Ind.  500,   81,99, 
Hurst  v.  Ash  Grove,  96  Mo.  168, 
Huseman  v.  Sims,  104  Inch  317, 
Husted  v.  Mead,  58  Conn.  55, 
Huston  v.  McCloskey,  76  Ind.  3S, 

v.  Neil,  41  Ind.  504, 

v.  Vail,  51  I  nd.  299, 

v.  Vail,  84  Ind.  262, 

Hutchison  v.Trauerman,  112  Ind.  21, 

Hutkoff  v.  Demorest,  103  X.Y.377, 

Hutts  \ .  Bowers,  77  Ind.  211, 

v.  Hutts,  51  Ind.  581,      261,  669, 
v.  Shoaf,  88  1  nd.  395, 
Hyatt  v.  Clements,  65  Ind.  12,    614, 

729, 
v.  Cochran,  69  Inch  436,        420, 
v.  Dusenhurv,  ro6  X.  V.  663, 
v.  Dusenbury,  1   Silvernail  (N. 
V.).  475. 

v.  Hyatt,  3  }  Inch  309, 
v.  Mattingly,  6S  Ind.  271, 
v.  Wolfe,  22  Mo.  App.  191, 
Hyde  v.  Curling,  io  Mo.  359, 


11S 

534 
623 

52! 

IIs 
290, 

785 

559 
762 

68 
-73 
3'P 

75 
638 
257 
225 

57's 
616 


391 

61 

793 
404 
682 

l5° 

14S 

435 
770 
101 
2SS 
326 
792 
5S0, 
771 

599 
621 

357 
480 

4 
4f,5 
7<>3 
296 

615, 

777 
670 

"4 

-IIs 
291 

79" 
t58 

17s 


Hyde  v.  Redding,  74  Cal.  493.  291 

Hydraulic,  etc.,  Co.  v.  Nciiincistcr. 

15   Mo.  App.  592,  |i7 

Hycr  v.  Norton,  26  Inch  269,      ij(/. 

3V> 
Hyland  v.  Milner,  99  Ind.  30S,  537,  703 

I 

Ibley  v.  Thompson,  32  S.  C.5S2.  94,  109 
Idaho,  etc.,  Co.  v.  Bradbury,  132  U. 

S.  509,  1      650 

Idley  v.  Bow  en,  11    Wench  227,  112 

Ikerd  v.  Beavers,  106  Inch  483,  4.12,  532. 

625,   77'/ 

lies  v.  \\  atson,  76  Ind.  359,  395,  396,  672 

Illinois,   etc.,   Co.   v.   Haskins,    ii; 

111.  300,  6S2 

v.  Slatton,  54  111.  133,  587 

Improvement    Co.    v.   Munson,    14 

Wall.  442,  4S0,  643 

Independent    District,  etc.,  v.  Dis- 
trict, etc..  44  la.  201,  44S 
Indiana  v.  Kentucky,  136  U.  S.  479,     27 
Indiana,  etc.,  Co.   v.  Adamson,  114 
Ind.  282,                                  202,  700,  764 
v.  Allen.  113  Ind.  5S1,  504 
v.  Birch  116  Inch  217.                          669 


v.  Cook,  102    Inch  13}, 


616 


v.  Finnell,  116  Inch  414,  39S,  550,  5S1, 
709,  716 

v.  Keeney,  93  Ind.  100,  16S 

v.  McBroom,  98  Ind.  167,    265,  456 

v.  McKernan,  24  Inch  62,  599 

v.  Quick,  mi)  Ind.  295,  210 

v.  Routledge,  7  Ind.  25,  126,451,  72S 
Indiana,    etc..     Board   v.    Gray,    54 

Ind.  91,  635 
Indiana    Pottery   Co.  v.    Bates,    14 

Inch  8,  599 

Indianapolis,  etc.,  Co.   v.  Anthony. 

43  Ind.  [83,                                     509,  568 

v.  Ballard,  22  Inch  44S,  p.  | 

v.  Beam,  63    [nd.  490;  64  Inch 

597.  3h> 

\  .   Bush,   IOI    Ind.   :;S2,    575,  6;' 

708 

v.  Caven,  53  Ind.  258,    116,  525,  533 
v.  Christian,  03  Ind.  360, 
v.  Cincinnati,  etc.,  Co.,  4^  Ind. 
281, 

v.  City  of  Indianapolis,  29  Inch 

-45- 

v.  Clark,  21  Ind.  1511, 

v.  Doty.  7  Ind.  580,  277 

v.  Ferguson,  58  huh  445.  37., 

v.  Herkimer,  |*>  Inch  142,  10s.  500 
v.  Horst,  93  I  .  s.  j,)i. 

v.  Kinney,  8  Ind.  402.  [88 

v.  Kostanzer,  58  Incl.  446,  170 


lxxii 


TABLE  OF  CASES. 


i  References 
Indianapolis,   etc.,   Co.    v.   City    of 

Lawrenceburgh,  37  Ind.  1 S9,  505 

v.  Lew  is,  1  tg  Ind.  218,  70S 

v.  McCaffrey,  62  End.  552,  780 

v.  McLin,  82  Ind.  (.35,  640 
\ .  Neglej  .  62  Ind.  17s. 
v.  Petty,  30  Ind.  261,             394,  398 
v.  Pitzer,  109  Ind.  179,  527,  529,  737 

v.  Risley,  50  Ind.  60,  7- 

v.  Routledge,  7  Ind.  J5,  2S7 

v.  Rutherford,  29  Ind.  82,   514,  580 

v.  Smythe,  45  Ind.  322,        295,  554 

V.  Solomon.  23  Ind.  ^34,      419,  420, 

422>  735 

v.  Stout,  53  Ind.  143.     143.  297,  580 

v.  Summers,  2S  Ind.  521,  635 

v.  Watson,  114  Ind.  20,  60 

v.  Wyatt,  t6  liul.  204,  767 
Indianapolis,  City  of,  v.  McAvoy, 

86  Ind.  587,  440 

v.  Kollman,  79  Ind.  504,       757,  760 

v.  Lawyer,  38  Ind.  348,  5S0 

v.  Parker,  31  1  ml.  230,  79° 

v.   Scott.  72   Ind.   196,      538,  577,  579 

Indianapolis  v.  Fairchild,  1  Ind.  315,  36 

V.  Patterson,  [12   Ind.  344,  co 
Inferior    Court    v.    Moni'oe,   21    Ga. 

'71-  763 

Inge!  v.  Seott,  So  Ind.  51S,  294,  774 
I  ngerman  \ .  State,  1 28  I  ml.  225,  440,  592 

Ingraham,  In  re,  64  N.  Y.  310,  514 

I  ngram  \ .  State,  2  |  Neb.  1,  ^57 

v.  Wackernagel  (la  ),  48  N.W.  ' 

Rep.  998,  _  549 
Insurance   Co.  v.   Dunn,    19  Wall. 

214,                                                 72,  631 

\ .  Morse,  20  \\  all.  445,  72 

v.  Lea,  21  Wall.  15S,  746 
Insurance    Co.    of   X     A.   v.   For- 

cheimer,  86  A  la.  541,  597 
Insurance  Co.  of  Pennsylvania  v. 

O'Connell,  34  111.  App.  357,  551 
International,   etc.,  Co.  \.  State,  75 

Tex.  350,                                        '  109 

v.  Underwood,  64  Tex.  463,  539 

\.  Underwood,  67  Tex.  5S9,  260 

Ipwich  v.  Essex  Co.,  co  Pick.  519,  648 

Ireland  v.  Emmet   on,  93  Ind.  1,  692 

v.  Palestine, etc., Turnpike  Co., 

19  Ohio  St.  [69,  28 

Iron  Mountain  Bank  v.  Armstrong, 

92  Mo.  265,  12S 

Irons  v.  Collins,  80  Ala.  10S,  673 
lion     Resolutions,    In    re,   9 

Col.  620,  5 

Irw  in  v.  Anthony,  S  Ind.  470,  7  |o 

\.  Lowe,  89  End.  540,            368,  374 

v.  Smith,  72  Ind.  482,   297,  755,  770, 

771 


arc  to  Pages.] 

Irwin v.Wickersham, 25  Pa.St.316,  [98, 

199 
Isham  v.  State,  1  Sneed,  in,  674,  079 
Isler  v.  Bland,  117  Ind.  457,  266 

Israel  v.  Jackson,  93  Ind.  543,      32,  532, 

626 
Ivens  v.  Cincinnati,  etc.,  Co.,    103 

Ind.  27,  5SS 

Ives   v.  Merchants'   Bank,  12  How. 

159,  310,  32S 

Ivory  v.  Delore,  26  Mo.  505,  75 

Ivy  v.  Lusk,  11  La.  Ann.  486,  135 


J 

J.  Oberman  Brewing  Co.  v.  Ohler- 

king,  r,  111.  App.  26,  62S 

fackson   v.   Alabama,   etc.,  Co.,  5S 

Miss.  64S,  72 

v.  Botsford,  8  Blackf.  194,  615 

v.  Bunnell,  113  N.  Y.  216,  86 

v.  Cole,  81   Mich.  440,  125 

v.  Feather   River,  etc.,  Co.,   14 

Cal.  iS,  555 

v.    German    Ins.    Co.,   27  Mo. 

App.  62,  024 

v.  Goddard,  1  Mass.  230,  94 

v.  Ilarbv,  70  Tex.  410,  623 

v.  Hardin.  S3  Mo.  175,  699 

v.  Hesketh,  2  Stark.  454,  615 

v.  Ilosmer.  14  Mich.  88,  132 
v.  Myers,  120  Ind.  504,             74,  75 

v.  Relt",  24  Fla.  [98,  300 

v.  Roe.  9  Johns.  77,  7SS 

v.  Sharpe,  29  Ind.  167,  792 

v.  Smith,  120  Ind.  520,   12,  2S6,  418, 

420.  071 

v.  State,  14  Ind.  327,  538 

v.  State,  104  Ind.  516,   147,  284,  285, 

419,  672 

v.  State,  28  Tex.  App.  143,  549 

v.  Van  Devender,  76  Ind.  27,  172 

v.  Wheeler,  6  Johns.  272,  34 
Jacksonville,  etc.,  Co.  v.  Peninsular, 

etc.,  Co.  (Fla.),  9  So.  Rep.  661,  655 
Jackson    School    Tp.   v.  Farlow,  75 

Ind.  1  iS,                                       428.  5 1  1 

Jacobs  v.Graham,  1  Blackf.392,  101,  106, 

349 

v.  Morrow,  21  Neb.  233,       450,  6S1 

Jager  v.  Doherty,  61  Ind.  528,  113 

James  v.   Dexter,  112  111.  489,  639 

v.  Mc  Williams,  6   Munf.  (Va.) 

501,  192 

v.  Roberts,  78  Tex.  670,        315,  340 

v.  Woods,  65  Miss.  528,  314 

Jamison  v.Barelli,  20  La.  Ann. 452,  468 

v.  Board,  56  Ind.  406,           6S0,  70s 

v.  Jarrett,  4  Ind.  187,  597 


TABLE  OF  CASES. 


xxin 


{References  arc  /<>  Pag<  •>.] 

fanitor,  In  re,  35  Wis.  410,  9,  37!  Jewell  v.  Chicago,  etc.,  Co.,  ^f  Wis. 

Jaquay  v.  Hartzell,  1  I  ml.  App.  500,  708  j      610, 

v.  Cordesman,etc.,Co.,  106  fnd.  v.  Parr,  13  Com.  B.  909, 

141,  6S9    Jewettv.  Albany  City  Bank,  1  Clark 

Jaqueth  v.  Jackson,  17  Wend.  434,     111  t      (N.  Y.),  59, 
Jarboe  v.  Severin,  112  Ind.572,  215,  412,  IJoab  v.  Sheets,  99  Ind.  328, 

532,  646   Jobbins  v.  Gray,  34  111.  App.  20S, 

439   Joerns  v.  La  Nieca,  75  la.  705, 
162,  172,    Johannes  v.  Yong,  42  Wis.  401,      66 


Jared  v.  Hill,  1  Blackf.  155, 
Jarvins  v.  Banta,  S3  Ind.  528, 


5  s" 

'■i  ; 
55 ' 


718 
91 


v.  Hamilton,  37  Wis.  S7, 
Jaseph  v.  Schapper,  1  Ind.  App.  154,  217 
[auncey  v.  Rutherford,  9  Paige,  273,  142 
)av   v.  Indianapolis,    etc.,   Co.,   17 

Ind.  262,  638 

Tean  v.  Ilennessv,  69  la.  373,  282 

Jeansch  v.  Lewis  (S.  D.),4S  N.  W. 

Rep.  12S,  5S1 

Jefferson  v.  Chapman,  127  111.  43S,  401 
Jefferson  Co.  v.  Ferguson,  13  111.  33,  523 
Jefferson    County  v.    Hawkins,  23 

Fla.  223,  514 

Jeffersonville,  etc.,  Co.  v.  Avery,  31 

Ind.  277,  533 

v.  Bowen,  40  Ind.  545,  539 

v.  Bowen,  49  Ind.  154,  178,  775 

v.  Hendricks,  41  Ind.  48,  533 

v.  Lyon,  55  Ind.  477,  578 

v.  Swift,  26  Ind.  459,  195 

v.  Worland,  50  Ind.  339,  525 

Jeffersonville,  City  of,  v.  Steamboat 

Ferryboat,  etc.,  35  Ind.  19,      479,  4S1 

Jeffries  v.  Lamb,  73  Ind.  202.      115,  141 

v.  Randall,  14  Mass.  205,  527 

Jelley  v.  Gaff,  56  Ind.  371,  137,  520 

v.  Roberts,  50  Ind.  1,  43S,  764 

Jellison  v.  Goodwin,  43  Me.  2S7,         572 

v.  Lafonta,  19  Pick.  244,  604 

Jemison  v.  Walsh,  30  Ind.  167,  294 

Jenkins  v.  Corwin,  55  Ind.  21,      99,  162 

v.  Long,  23  Ind.  460,     17S,  179,  1S1, 

192 
v.  Peckinpaugh,  40  Ind.  133,  354 
v.  Rice,  S4  Ind.  342,      247,  294,  295, 

636 

v.  State,  7S  Ind.  133,  704 

v.  Tobin,  31  Ark.  306,  572 

Tenks  v.  State,  39  Ind.  1,  759,  765 

Jenne  v.  Burt,  121  Ind.  275,  520 

v.  Marble,  37  Mich.  319,  274 

Jenney  v.  Jenney,  i|  Mass.  231,  141 

Jennings  v.  Bank,  13  Col.  417,  411 

v.  Commonwealth,  17  Pick.  So,  674 

V.  Durham,  101    Ind.  391,     625,   774 

Jerome  v.  McCarter,  21  Wall.  17,     316, 

341.  342 

Jessup  v.  City  Bank,  15  Wis.  604,      495 

v.  Eldridge,  Coxe  (N.  J.),  401,  619 
Jessup's  Est.,  In  re,  Si  Cal.  40S,  46^ 
Jessup  v.  Spears,  3S  Ark.  457,  127 


96 
Johet,  etc.,  Co.  v.  Shields,  134  111. 

209,  641,  642 

John  v.  Clayton,  1  Blackf.  54,  273 

v.  Farmers',  etc., Bank,  2  Blackf. 

3r>7-  59- 

Johns  v.  Hedges,  60  Md.  215,  648 

v.  State,  104  Ind.  557,  252 

Johnson  v.  Ahrens,  117  Ind.  600,        636 

v.  Ballew,  2   Port  (Ala.),  29,         763 

v.Bell,  10  Ind.  363,  743,  748,  759,  761 

v.  Breedlove,  72  Ind.  368,    562,  565, 

567,  608,  636 

v.  Briscoe,  92  Ind.  367,         301,  397 

v.  Commonwealth,  87  Ky.  189,  248 

v.  Conklin,  119  Ind.  109,      520,  63S 

v.  Crawfordsville,  etc.,  Co.,  11 

Ind.  280,  321,  635 

v.  Culver,  1 16  Ind.  278,  356, 575, 62J, 

710 
v.  D'Heur.  71  Ind.  199,  60S 

v.  Dellidge,  $■;  Mich.  436,  671 

v.  Evans,  8  Gill.  155,  570 

v.  Gwin,  100  Ind.  466,  569 

v.  Herr,  SS  Ind.  2S0,  (.55 

v.  Hobart,  45  Fed.  Rep.  542,  62] 
v.  Holliday.  70  Ind.  151,  529,  737 
v.  Hosford,  110  Ind.  572,  399,  717 
v.  Inghram,  1  Grant's  Case,  152,  639 


,  Jennings,  10  Gratt. 
v.  Johnson,  1  [5  Ind.  1 12, 
v.josephs,  75   Me.  545, 
v.  Jouchert,  124  Ind.  105, 
v.  Kohl.  55  Ind.  454, 
v.  Lynch,  87   [nd,  320, 


61. 


[62 
615 
274 

268 
146 


v.  McCulloch,  S9  Ind.  270,  745.  783 


v.  Macon,  1  Wash.  (Va.)  4. 
v.  Malloy,  74  Cal.  430, 
V.  Maples,  40,  111.  101, 
v.  Maxwell.  87  N.  C.  IS, 
v.  Miller,  45  Ind.  29,  1  50, 

v.  Miller  (la.),  4S   N.   W.  Rep. 
10S1, 

v.  Miller  (la.),   47    X.  W.  Rep. 


9°3. 


30. 


Moore,  112  Ind.  91, 

Nation, 

Northern,  etc.,  Co.,  39  Minn. 

Pontious,  11S  Ind.  270. 
Prine,  55  Ind.  35 1.  708, 

Putnam,  95  Ind.  57, 


60S 
615 

636 

708 
178 

J34 

64 

7-s 
70S 


lxxiv 


TABLE  OF  CASES. 


Refi  renct  s  are  to  Pagi  f,  | 


Johnson  v.  Ramsay,  91  [nd.  189,        562 
v.  Slappej  .  85  ( Ja.  576,  786 

v.  Stale,  2  [nd.  652,  53S 

v.  Mate.    \l   Ark.  391,  777 

v.  State,  65  [nd.  269,  763 

V.   State,   Il6  Ind.  374,  2S5 

v.  Stebbins,  5  I  nd.  36 1,  401 

v.  Stephenson,  104  Ind.  36S,      104. 
214.  263 
v.Thatcher,    7   Gray,   242;    12 
Gray,  [98,  115 

v.Tyler,  1  Ind.  A  pp.  3S7,  620 

v.  Unversaw,  30  I  ml.  435,  294,  350 
v.  Williams,  jS  Ark.  478,  112 

Johnson     School    Tp.    v.     Citizens 
Hank.  Si   [nd.  5  1  5,  736 

Johnston  v.  Flint,  75  Tex.  379,  345 

v.  Holmes,  7,2  S.  C.  434,  675 

v.  Jones,  1  Black.  2<  9,  700 

v.  Mason.  27  Mo.  511,  535 

v.  Morrow.  60  Mo.  339,  486 

\  .  State.   12S  Ind.  16,  '  '  9 

Johnston,  etc.,  Co.  v.  Bartley,   94 
[nd.  131,  702 

Joint   School   District  v.  Kemer,  6S 
Wis.  246,  66 

Jolley  v.  Taylor,  1  Camp.  143,  697 

Jolly  v.  Ghering,  40  Ind.  139,  735 

v.  Terre  Haute, etc.,  Co., 9  Ind. 

IT-  777 

Jon.-.  In  re,  7,^  Minn.  405,  83 

v.  Ahrens,  116  Ind.  490,  636 

v.  Angell,  95  Ind.  376,          570.  786 

v.  Baird,  76  Ind.  164,            714,  71^ 

v.  Black,  48  Ala.  540,  28 

v.  Butterworth,  3  N.J.  L.  345,  .736 

v.  Cardwell,  98  Ind.  331,  604 

v.  Chicago,  etc.,   Co.,  42   Minn. 

183,  792 

v.  Christian.  24  M<>.  App.  540,  700 

v.    Doe.   I    Ala.    109,            290,  733,  765 

v.  Dowle,  9  M.  &  W.  19.  54 

v.  Droneberger,  23  Ind.  74,  207,  208, 
209,  307,  318,  325,  330,  331 
v.  Etheridge,6  Porl  (  Ala.),2oS,   132 
v.  Foley,  i2i  Ind.  1S0,  [65,    [96 

v.  Fortune,  128  111.  518,  478 

v.  Gregg,  1 7  Ind.  8  \.  589 

v.  Hathaway, 77  Ind.  1  >,  [9I  .  199,635 
v.  Jones,  91  Ind.  37S,  222.22^,  760 
\ .  Jones,  io8  N .  Y.  4 15.  631 

v.  Julian,  12  Ind.  274,  5S1 

v.  Keen,  11  5  Mass.  1  70. 
v.  Layman,  123  [nd.  569,     740.  77}, 

7S2 
v.  Lindsay,  98  [nd.  21S.  C36 

v.  Mc(  oca  .  1  Blackl  404 

v.  Malloy,  15  S.  W.  Rep.  [98,     340 
v.  Mathews  1  Miss.),  4  So.  Ri 
547.  4SS 


75i 
746 
301 

533 
63 

53° 
255 
691 

7S7 
605 

7  !9 
66i 

114 

635 


Jones  v.    Null,  9  Neb.  253, 
v.  Osgood,  2  Seld.  2^pr 
v.  Payne,  107  [nd.  307, 
v.  Pethast,  72  [nd.  158, 
v.  Rittenhouse,  87  Ind.  34S, 
v.  Snodgrass,  54  Mo.  598, 
v.  State,  So  (J a.  640, 
v.  State,  2  Blackf.  475,  529, 

v.  State,  1 1  [nd.  357, 
v.  State,  49  I  nd.  <j  |<;, 
v.  State,  89  Ind.  82, 
v.  State,  1 12  Ind.  193, 
v.  State,  118  I  ml.  39,  702, 

v.  Talbot.  4  Mo.  279, 
v.  Thompson,  12  Cal.  191, 
v.  United   States   Slate  Co.,  16 
How.  Pr.  1  29, 
v.  Van  Patten,  3  Ind.  107,   170.  is 

648,  744 
v.  Wilder.  28  Minn.  23S,  675 

v.  Woodstock  Iron  Co.,  90  Ala. 

515.  3°9 

v.  Yetman.  6  Ind.  46,  45 

Jonsson  v.  Lindstrom,  114  Ind.  152,  2S2 

Jordan.  Ex  parte,  94  U.  S.  24S,  114 

v.  Bowman,  28  Mo.  App.  608,     147 

v.  De  Heur.  71  Ind.  199,      608,  72s 

v.  National  Shoe,  etc.,  Bank,  74 

N.  Y.467,  414 

v.  Quick,  1 1  la.  9,  771 

v.  St.  Paul,  etc.,  Co.  42   Minn. 

172, 
Joseph  v.  Mathes,  no  Ind.  114, 

v.  Schnaider's  Brewing  Co.  v. 

Lewie,  41  Mo.  App.  5S4, 
Joseph  Uhrig  Brewing  Co.,  In  re, 

1 1  Mo.  App.  3S7, 
Joslin  v.  Grand   Rapids,  etc.,   Co., 

53  Mich.  322. 
Joslyne  v.  Eastman,  46  Yt.  25S. 
Josuez  v.  Conner,  75  N.  Y.  150, 
Jouchert  v.  Johnson,  108  Ind.  436,      I  58 
Joy  v.  State,  14  Ind.  139,  541 

Joyce  v.  Dickey,  104  Ind.  183,91,  92,  103 
Judah  v.  Trustee,  etc.,  23  Ind.  272,  6]  | 
Judd  v.  Martin,  97  Ind.  173, 

\  .  Small.    107   [nd.  30s.  398, 

fudge  \ .  Ohm,  89  Cal.  134. 

judge  of  Oneida  C.  P.  v.  People,  iS 

Wend.  70. 
Judge  of  Probate  v.  Stone, 44  N.  II. 

593< 
Judson  v.  Love,  35  Cal.  463. 
Judy  v.  Citizen,  101  Ind.  18, 

v.  Gilbert,  77  Ind.  96, 
Julian  \ .  Beal,  3  |  Ind.  371, 

V.   Rogers,  87    MO.   22<). 

Julis  v.  Ingalls.  17  Abb.    Pr.  448,  n,  697 

June  v.  Payne,  107  Ind.  307.       212,  331. 

33--  397.  ''37 


67S 


447 


124 


78 


692 

5-4 

447 

435 


"5. 

140 

34. 

703 

5S7 

57. 

474 

209, 

320 

TABLE  OF  CASES. 


1  x  x  V 


[References  are  to  Pages.\ 


Jussen  v.  Hoard,  95  Ind.  567, 
Justice  v.  Justice,  115  Ind.  201, 

K 


The  Vesal  Eagle,  25  Wis. 


592 

J59 


Kabe 

10S, 
Kalamazoo,  etc.,  Co.  v.  McAlister, 

36  Mich.  327, 
Kalckhofi  v.  Zoehrlaut,  43  Wis.  373, 
Kalk  v.  Fielding,  50  Wis.  339. 
Kain  v.  Gradon,  6  Blackf.  13S, 
Kambieskey  v.  Stale,  26  Ind.  225, 
Kamerick   v.   Castleman,    29    Mo. 

App.  65S,  28,   293 

Kammerling  v.  Armington,  58  Ind. 

3S4, 
Kansas  Citv  v.  Allen,  2S  Mo.  App. 

133. 

Kansas  Citv  Court  (Mo.),  16  S.W. 

Rep.  853, 
Kansas  City,  etc.,  Co.  v.  Doggett, 

67  Miss.  44, 

v.  Smith,  90  Ala.  25, 
Kansas,  etc.,  Co.  v.  Couse,  17  Kan. 

571- 

v.  Hawley  (Kan.),  27Pac.Rep. 

170. 
Kanouse  v.  Martin,  15  How.  19S, 
Karr  v.  Karr,  19  X.  J.  Eq.  427, 
Kasson  v.  Follett,  9  Col.  34S, 
Kaster  v.  Kaster,  93  Ind.  581, 
Kaukauna,  etc.,  Co.  v.  Green  Bay, 

etc.,  Co.,  75  Wis.  3S5, 
Kaul  v.  Brown  (R.  I.),  20  Atl.  Rep. 

10,  620,   792 

Kavanaugh    v.  Joncsville,  24    Wis. 
^6iS,  4S3 

Kaw  Valley  Life  Ass'n  v.  Lemke, 

40  Kan.  142,  631 

Kay  v.  Riley   (111.),  26  N.  E.  Rep. 

5-.v  655 

Kealing  v.\  an  Sickle,  74  Ind.  ^29,    70S, 

7'.v  7lS 
Kearney  v.  Snodgrass.  12  Ore.  11, 
Keating  v.  State,  44  Ind.  449, 
Keck  v.  Umphries,  4  Ind.  492, 
Kedy  v.  Kramer   (Ind.),   28  N.  E 

Rep.  1 1  21, 
Kee  v.  McDonald,  17  Ind.  518, 
Keedy  v.  Newcomer,  1   Md.  241. 
Keegan  v.  Carpenter.  47  Ind.  597, 
Keeline  v. Council  Bluffs, 62  la.  4^0.    iS§ 
Kcelv  v.  Newcomer,  1   Md.  241,  703 

Keen  v.  Schnedler,  15  Mo.  App.590,  483 
v.  Whittinger,  40  Md.  4N0.  33S 

Keenan,  Ex  parte,  21  Ala.  558,  555 

Keenan  v.  State,  S  Wis.  132,'  (70 

Keene  v.  White,  136  Mass.  23,  20S 

Keepfer  v.  Force,  S9  Ind.  Si,  70,  179.  451 


7S0 

619 
692 

537 
116 

37S 


357 

75S 

40 

557 
73S 

640 

733 

7- 
'47 
447 
374 

601 


75° 
678 

79- 

-» -» 

70 
704 

563 


159. 

3°°. 


Keesling  v.  Ryan,  S4  Ind.  S9, 

\ .  Watson,  91  Ind.  57S, 
Kegg  v.  Welden,  10  Ind.  550, 
Kehr  v.  Hall,  1 17  Ind.  405. 
Keighler  v.  Savage,   etc.,    Co.,    12 

Md.383, 
Keiser  v.  Lines,  57  Ind.  431, 
v.  Lines,  79  Ind.  445, 
v.  Yandes,  45  Ind.  174, 
Keisling  v.  Readle,  1  Ind.  App. 240, 
Keith  v.  Clark.  97  U.  S.  4^4.        305. 
Keitzinger  v.  Reynolds,  11  Ind.  545, 
Kellenberger  v.  Boyer,  37  Ind.  [88, 
v.  Perrin,  46  Ind.  282,  287, 

Keller  v.  Boatman,  49  Ind.  101,  132, 
Keller  v.  Williams.  49  Ind.  504, 
Kelley  v.  Adams,  120  Ind.  340, 

v.  Bennett,  132  Pa.  St.  218,  260, 
v.  Burnell,  14  Ind.  32S, 
v.  Fitzell,  65  Cal.  S7, 
v.  Love,  35  Ind.  106, 
Kellinger  v.  Roe,  7  Paige,  362, 
Kellogg  v.  Cochran.  S7  Cal.  192, 

v.  Nelson,  5  Wis.  125, 
Kellum   v.   Berkshire,  etc.,  Co.,  101 
^  Ind.  455. 

Kelly  v.  Chicago,  etc.,  Co.,  70  Wis. 
335' 

v.  Davis,  1   Head.  71, 
v.  Israel.  11  Paige,  147,  129, 

v.  Murphy.  70  Cal.  560. 
v.  Norwich,    etc.,  Co.  (la.),  47 
N.  W.  Rep.  986, 

v.  Troy,  etc.,  Co.,  3  Wis.  254, 
Kelsey  v.  Campbell.  3S  Barb.  23s. 
v.  Chicago,  etc.,  Co.  (S.  D.), 
45  N.  W.  Rep.  204. 

v.  Cooley,  58  Hun.  601, 
v.  Western.  2  N.  Y.  500, 
Kelso  v.  Wolf,  70  Ind.  105, 
Kemmler,  In  re,  136  U.  S.  436, 
Kemper  v.  Trustees,  17  Ohio,  293, 
Kendall  v.  Post,  8  Ore.  141. 

v.  United  States.  12  Pet.  524, 
v.  Wilkinson.  4  E.  &  B.  6S0, 
Kendeli  v.  Judah,  63  Ind.  291. 
Kennegar  v.  State,  120  Ind.  170,  253, 
Kennedy  v.  Anderson,  9S  Ind.  i;i. 


511 

71- 


21 
53° 
391 

735 
7"1 
66< 

312 
59* 

7'"' 
448 

599 
604 

344 
7  s" 
168 

736 

143 
470 

537 


v.  Divine,  77  Ind.  490,  120, 

v.  Hanner,  19  Cal.  374,  496, 

v.  1  tolladay,  10;  Mo.  24, 

v.  McNichols,  2<>  Mo.  App.  ir. 

V.   Moore,  17  S.  C.  464, 

v.  Rohinson.  70  Ind.  524, 

v.  Shaw,  38    Ind.  474, 

v.  State.  33  Ind.  439, 

v.  State,  37  Ind.  355, 

v.  State.  53  Ind.  5  \2.  250. 


463 
547 
!3- 
763 

663 
617 
210 

-75 

554 

17 

790 

'7 

5M 

20 

12 
333 

7S1 

5-7 
511. 

"7s 
77! 
497 
620 
665 
(,,o 
404 

2.-0 

769 
291 


[XXVI 


T  VP.LK   OF  CASES. 


Kennedy  v.  State,  62  Ind. 

v.  State,  66  End.  370, 
Kennel!  v.  Judah,  63  Ind.  291, 

v.  Smith,  loo  Ind.  494, 
Kenney  v.  Dodge,  [01  Ind.  5731 
Kennicutt  v.  Parmalee,  io<^  N.  Y. 

650, 
Kenosha  Stove  Co.  v.  Shedd  (la.), 

48  X.  W.  Rep.  933, 
Kent  v.  Lawson,  12  Ind.  675,      20^;, 


162 
761 

373 
394 

Si8 

73S 
_  . 
299,  777,  786 
v.  Mahaffy,  2  Ohio  St.  498,  430 
Kentucky  v.  Dennison,  24  I  low.  66,  440 
Kenworthy  v.  Williams,  5  Ind.  375,  6S9 
Kenzie  v.  Rhoeles,  13  Abb.  I'r.  337,  270 
Keokuk,  etc.,  R.  R.  Co.  v.  Donnell, 

77  la.  221,  ^  392 

Kepler  v.  Conkling,  89  Ind.  392,         5    5 
Kermeyer   v.  Kansas,  etc.,  Co.,  iS 

Kan.  215,  71 

Kern  v.  Bridwell,  119  Ind.  226,    539, 

v.  Hinderkoper,  103  U.  S.  485,    631 

v.  Maginniss,  41  Ind.  39S,  75 

Kernodle  v.  Caldwell,  46  Ind.  153,     507, 

609 
v.Gibson,  114  Ind. 451,   16S,  296,  ^oS, 

'6S2 

Kerr  v.  Lunsford,  31  W.  V.i.  659,      5S0 

v.  Martin,  122  Pa.  St.  436,  52$ 

Kerstetter  v.  Raymond,  10  Ind.  199,   521 

Kershman  v.  Swehla,62  la.  654,        490 

Kershaw  v.  Wright,  [15  Mass.  361,    765 

Kesler  v.  Kesler,  39  Ind.  153,  36 

v.  Myers,  41  Ind.  543,     162,  164,  1S2, 

1S3,  71.9,  770,  771 

Kessler  v.  State,  50  Ind.  229,  679 

r  v.  Stark,  19  111.  32S,  599 

Ketcham  v.  Brazil,  etc.,  Co.,  8S  Ind. 

515,  525,  532.  567,  626,  647,  786 


A',  /',  n  H'  ■  t  are  to  Pages.] 

Kimball  v.  Loomis,  62  Ind.  201, 


Hill,  42  Ind.  64, 
Ke-tuc-e-mun-guah  v.  McClure,  122 

Ind.  541, 
Key  v.  Robinson,  S  Ind.  36S, 
Keyes  v.  State.  122  Ind.  527.       253, 
Keyser  v.  Farr,  C05  V .  S.  265,    457, 

"  v.  Wells,  60  Ind.  261, 
Kibby  v.  Cannon,  9  Ind.  371, 
Kidd  v.  Curry,  29  Hun.  215, 
Kidwell  v.  Kidwell,  S4  Ind.  22  |. 
Kiefer  vi.  Winkens,  39  How.  Pr.176,  112, 

142 
Kiernass  v.  \\  olff,  56  Hun.  647, 
Kilbourne  v.  Thompson,  [03   I  .  S. 

Kile  v.  Yellowhead,  80  111.  20S, 
Kiley  v.  Perrin,  69  ind.  387,       276,    117 
K ilk-  v.  Reading  Iron  Works  (Pa.), 
[9  A  tl.  Rep.  5  (7-  66 

Killian  V.  1 '.i-rnm.mn,  57  Ind.  480,      692 

Kitts  v.  Willson,  [06  End.  147,  215 


75'' 

5-1 
401 

5-9 

459 

296 

162 
497 


168 


126 


256, 

77[ 

v.  Rogers,  7  So.  Rep.  241,  345 

v.  Semple,  31  Cal.  662,  [68 

v.  Thompson,  4  Cush.  441,  534 

v.  Whitney,  [5  Ind.  280,       520,  789 
Kimberly  v.  Arms  Co.,  40  Fed.  Rep. 

51s-  45°>  -15'.  456 

Kimble  v.  Christie,  55  Ind.  140,  635 

v.  Seal,  92  Ind.  276,     17,  ^2,  569,  574 

Kimbrell  v.  Rodgers,  90  Ala.  339.       274 

Kimbrough   v.    Mitchell,    1    Head. 

(Tenn.)  539,  141 

v.  Pitts,  63  Ga.  1.96,  ^2o 

Kimes  v.  St.  Louis,  etc.,  Co.,  S5  Mo. 

611,  4  S3, 

Kimple  v.  Conway.  69  Cal.  71, 

Kincaid  v.  Indianapolis    Nat.  Gas 

Co.,  124  Ind.  577, 

v.  Nicely,  90  Ind.  403, 
King,  Ex  parte.  27  Ala.  4S7, 
v.  Aekley.  3  T.  R.  250, 
v.  Barnes,  113  N.  Y.  476, 
v.  Brewer,  19  Ind.  267, 
v.  Enterprise   Ins.   Co.,  45  Ind. 
510,  555, 
Hampton,  3   Hay w.  (Tenn.) 


4J 
60, 


v.  Hopkins,  57  N.  II.  334, 

v.  1  hint,  4  B.  &  A.   1  50, 

v.  I  Iunter.  65  N.  C.  603, 

v.  Justices,  etc.,  5  New  &  Man. 

139. 
v.  McCann,  25  Ala.  471, 
v.  Rea,  [3  Col.  1 « », 
v.  State,  1  5  Ind.  64, 
v.  Sutton,  8  15.  &  C.  417, 
v.  Wilkins,  10  Ind.  216, 
v.  Worminghall,  6  M.  &  S.  350, 

Kingen  v.  State.  45  Ind.  518, 
v.  State.  46  Ind.  132. 

Kingman  v.  Paulson,  126  Ind.  507, 

Kingsbury  v.  Buckner,  134  U.  S.  650. 

v.  Kingsbury.  20  Mich.  212, 
Kinkads  v.  Myers,  17  Ore.  470, 
Kinnaman  v.Kinnaman,  71  I  ml.  4 17, 
622,  670, 
Kinnard  v.  Carter,  64  Ind.  31, 
Kinnev  v.  Dodge,  [oi  Ind.  573,  39;, 

v.'Doe,  8  Blackf.  350, 

v.  I  Iiekox.  2  |   Neb.  107, 

v.  State,  117  Ind.  26, 
Kinsey  v.  Satterhwaite,  8S  Ind.  342, 
Kinsley,  City  of,  v.  Morse,  40  Kan. 

577' 
Kions  v.  Day,  94  Ind.  500, 
Kiphart  v.  IJrenneman.  25  Ind.  152, 

v.  Bridwell,  1  -  Ind.  211, 


4S4 

96 

397 
640 

43s 
102 

639 
3°9 

613 

45  + 

40 

52S 

3 

436 

3J4 
411 
300 
527 

-77 
102 

661 

5-7 
504, 

672 

208 

«3 
633 
420, 
786 
603 
6x4 

3+ 
[50 

791 

741 

56S 
394 

34- 
395 

43 


TABLE  OF  CASES. 


l.xx 


[Reft  rences  are  to  !'• 


116, 


Kirbv  v.  Bowland.  69  Ind.  290 
v.  Cannon,  9  Ind.  371, 
v.  1  folmes,  6  Ind.  [3 i, 
v.  Robbins,  [3  Ind. 

Kircher  v.    Milwaukee,  etc.,  Co.,  74 

Wis.  .(70, 
Kirchner  v.  Wood.  48  Mich.  199, 
Kirk  v.  State.  14  Ohio,  511, 
Kirkpatrick  v.  Alexander,  60   Ind. 

95. 

v.  Armstrong,  79  Ind.  3S4, 
v.  Cooper,  89  111.  210, 
v.  McDonald,  11  Pa.  St.  3S7, 
v.  Reeves  121  Ind.  2S0,  371, 

v.  Taylor,  11b  Ind.  329, 
Kirland  v.  State.  43  Ind.  146, 

v.  Stumph,  73  Ind.  514, 
Kirstein  v.  Madden   38  Cal.  15S, 
Kiser  v.  Beam,  117  Ind.  31, 
Kissel  v.  Anderson,  73  Ind.  4S5, 

294>  51!. 
Kitch  v.  Otis,  79  Ind.  96,  70, 

Kitchen  v.  Randolph,  93  U.  S.  86, 

Kitsmiller 


■7s 
172 
287 
284 

556 

64 

619 

397 
614 

3-3 
59° 

7 '3 

^3 
G61 

26S 

523 

4S0 

279. 
75i 
793 
33°: 
337 
Kitchen,  24  Iowa,  163,  147, 
671 

Kizer  v.  State,  12  Lea,  564,  534 

Klebar  v.  Corvdon,  $3  Ind.  95,    71,  126, 

2N7,  456 

Kleespies  v.  State,  106  Ind.  3S3,  162,  255 

Klein  v.  Fischer,  36  Mo.  App.  56S,  397 

v.  Hoffheimer,  132  U.  S.  367,      56S 

v.  Russell,  19  Wall.  433,  643 

Kleinschmidt    v.    Mc Andrews,   117 

_  U.  S.  2S2,  200,  741,  760,  767 

Kleyla  v.  Ilaskett,  112  Ind.  515,  147,  1^4, 

2S4»  774 

Klimple  v.  Boelter,  44  Minn.  172,      570 

Kline  v.  Kline.  49  Mich.  419,  273 

Klingler  v.  Smith   (Ind.),  29  X.  E. 

,  Rep.  364,  290 

Klink  v.  Cuseta,  30  Ga.  504.  73 

Klosterman  v.  Olcott,  25  Neb.  382,  692 

Knapp  v.  Banks.  2  How.  73,  qo 

v.  Dcvo,  108  N.  Y.  51S,  46,  7S 

v.  Simon,  96  N.  Y.  284,  401 

Knarr  v.  Conaway,  53  Ind.  120.  121,  295, 

'         299.  44S.  $33,  7S6 
Kneeland    v.  American,  etc.,    Co., 

140  U.  S.  592,  4S9 

Knight  v.  Fisher,  15  Col.  176,  71S 

v.  Freeport,  13  Mass.  21S,  621 

v.  Low,  15  Ind.  374,  630 

v.  People,  11  Col.  30S,  31S 

Knott  v.  Taylor,  99  N.  C.  qn,  2S1 

Knoup  v.  Piqua  Bank,  1  Ohio  St. 603,    61 

Knowles  v.  Dow,  22  N.  II.  387,  569 

v.  State.  27  Tex.  App.  503,  413 

Knox  v.  Cleveland,  13  Wis.  245,  —7 

v.  Exchange  Bank, 12  Wall.  770.    136 


7 '9 
793 

440 

285 


Knox  v.  McFarren,  4  Col.  34S, 
v.  Noble,  25  Kan.  449, 
v.  Trofalet,  94  Ind.  346,       712, 
v.  Work,  2  Binn.  582, 
Knox  Count  v  v.  Aspinwall,  24  How 
376, 

v.  Aspinwall,  21  How.  537, 
Knox  Co.  Bank  v.  Lloyd,  18  Ohio 

St.  353^ 

Knusly  v.  Hire,  2S  N.  E.  Rep.  195,  34^ 
Koehlcr  v.  Adler,  7S  X.  Y.  287,  '  1547 
Koerner  v.  State,  96  Ind.  243,    233,  234, 

Kohler  v.  Montgomery,  17  Ind.  220,    102 

665 

74« 

479 
440 

504 


Kohn  v.  Lucas.  17  Mo.  App.  29, 

Koile  v.  Ellis,  16  Ind.  301, 

Kolle  v.  Foltz,  74  Ind.  54, 

Konor  v.  Happersett,  21  Wall.  162 

Koon,  Ex  parte,  1  Denio,  644, 

Koonce  v.  Butler,  84  X.  C.  221, 

Koons  v.  Blanton  (Ind.),  27  X.  E 

Rep.  334,  S2^6-^ 

v.  Mellett,  121  Ind.^S^,  120,  221,  44S 

v.  Price,  40  Ind.  104.  520 

v.  Williamson,  90  Ind.  599,  76 

Kopelke  v.  Kopelke,  112  Ind.  43^,     6S7, 

692,  744 
Korrady   v.    Lake   Shore,  etc.,   Co. 

(Ind.),  29  N.  E.  Rep.  1069,      579,  709 
Kountze  v.  Omaha  Co.,   107   U.  S. 

37S, 
Krack  v.  Wolf,  39  Ind.  88, 
Kraft-Holmes,  etc.,  Co.  v.  Crow, 36 

Mo.  App.  2SS, 
Krall  v.  Libbey,  53  Wis.  292, 
Kramer  v.  Matthews.  68  Ind.  172, 
Krapp  v.  Haner,  38  Kan.  430, 
Kreite  v.  Kreite.  93  Ind.  5S3, 
Kreitline  v.  Driskill,  106  Ind.  359, 

v.  Franz,  106  Ind.  359,  52, 

Kress  v.  State,  65  Ind.  106, 

Krewson  v.  Cloud,  45  Ind.  273, 

Krippendorf  v.  Hyde,  no  U.S. 276,  114 

Krug  v.  Davis,  S5  Ind.  309,  146 

v.  Davis,  101  Ind.  75,    506,  50S,  562, 

629/712 

Kruidener  v.  Shields.  77  la.  504,         620 

Krutz  v.  Craig,  53  Ind.  561,       7^2.  783 

v.  Griffith,  68  Ind.  444,  ^33 

v.  Howard.  70  Ind.  174,   299.  ^,33,  786 

Kshinka  v.  Cawker.  16  Kan.  63,         7^7 

Kuh  v.  Metropolitan  Rv.  Co..  26  J. 

&  S.  (X.  Y.)  138,  611 

Kuhlman  v.  Medlinka,  29  Tex  385,  7og 
Kuhnert  v.  Conde,  39  Kan.  265,  100 

Kuhns  v.  Gates,  92  Ind.  66,  ,71 

Kundingerv.  Saginaw.  ;,)  Mich.  3;;.     61 
Kundolf  v.   Thalheimer,   12    N.    Y". 
591,  217 


308 
690 

557 

53 
618 
282 

7f 
781 
491 
567 


[XXVlll 


TABLE  OF  CASES. 


[References  are  to  Pages  J 


Kuntz  v.  Sumption,  1 17  Ind.  1.  5,  7-  121, 

74S 
401 
535 
561 

2I5 
2S2,  285 

537 
Stra. 

718 


Kurt/  v.  Carr,  105  Ind,  574. 
V.  Frank.  76  [nd.  594, 

Kusler  v.  Crofoot,  78  Ind.  597, 

K\  le  \ .  Board,  94  I  rid.  115, 
v.  Frost,  29  Ind.  382, 
v.  Kyle,  55  I  nd.  387, 
v.  .Miller,  108  Ind.  90, 

Kynaston  v.  Mayor,  etc., 


L'Hommidieu   v.   Cincinnati,  etc., 

Co.,  120  Ind.  435,  52,  772 

Labold  v.  Wilson,  4  Ohio  C.  C.  345,  756 
Lackawanna,  etc.,  Co.  v.   Doak,  52 

Pa.  St.  379,  570 

Lace  v.  Fixen,  39  Minn.  46,  646 

Lackey  v.  Hernby,o,  [nd.  536,  375,  628 
v. "Pearson,  101  N.  C.  651,  413 

Lacroix  v.  Camors,  34  La. Ann. 639,  467 
La  Croix    v.    Commissioners,    50 

Conn.  321,  61 

Lacy  v.  Fairman,  7  Blackf.  55S,        322 
Ladd  v.  Couzins,  35  Mo.  513,  456 

Ladow  v.  Groom,  1  Denio,  429,  61 

La  Fayette,  etc.,  Co.  v.  Adams,  26 

Ind.  76,  572 

La  Fayette  Bank  v.  Buckingham, 

12  Ohio  St.  419,  751 

La  Fayette,  etc.,  Co.  v.  Geiger,  34 
Ind.  185,  5 

v.   New  Albany,  etc.,  Co.,    13 
Ind. 90,  530 

La   Fayette,  City  of,  v.   Allen,    Si 
Ind.  [66,  716 

v.  Weaver,  92  Ind.  477,  623 

La  Follettev.  Higgins,  169  Ind.  241,  279, 
666,  6S2,  719 
Lagro,  etc.,  Co.  v.  Eriston,  10  Ind. 

34*.  7S2 

Laindley  v.  Kline,  21  W.  Va.  21,      444 

Lake  v.  Bender,  iS  Nev.  361,  784 

v.  Gibson,  2  Coins.  188,  414 

v.  Halbert,  2  Dall.  41,  93 

v.  Jones,  49  Ind.  297,  179 

v.  Lake.  99  Ind.  339,  32,  267,  274,  532 

Lake,  etc.,  Bank  v.  Judson,  122  N. 

Y.  278,,  614 

Lake. Tow  n  <>f,\ .  Bok,33  111.  App. 45, 571 

Lake   Erie,  etc.,  Co.  v.  Acres,   108 

Ind.  548,  402,  411,  790,  791 

v.  Faught,  i-1.,  [nd.  257,  7S 

v.  Fix,  SS  Ind.  3S1,  567,  625,692,  759 

v.  Griffin,  92  Ind.  487,    ^2,  215,  479. 

51,2,  610 

Lake  Shore,  etc.,  Co.  v.  Cincinnati, 

etc.,  Co.,  116  Ind.  578,        38,  147,  2S4 

v.  Foster,  104  Ind.  293,  640 


Lake  Shore,  etc.,  Co.  v.  Perkins,  25 
Mich.  329,  587 

v.  Pinchin,  112  Ind.  592,  709 

v.  Stupak,i23  Ind.  210,  575,695,696, 

709 
Lamance  v.  Byrnes,  17  Nev.  197,  7S2 
Laman  v.  Crooker,  97  Ind.  163,  700 
Lamasco  v.  Brinkmeyer,  12  Ind.  349,  43 
Lambert  v.  Haskill,  80  Cal.  611,  S6 

v.  Merrill,  56  Vt.  464,  225 

Lamburth  v.  Dalton,  9  Nev.  64,  464 
Lamon  v.  McKee,  7  Mackey,  447,  65 
Lamphier  v.  State,  70  Ind.  317,  529,  530 
Lancaster,  In   re,  Courts  of,  4  Pa. 

L.  Jr.  Rep.  315,  40 

Lancaster  v.  Collins,  115  TJ.  S.  222,  573 

v.  Waukegan,  etc.,  Co.,  132  111. 

492>  383 

Landers  v.  Beck,  92  Ind.  49,        759,  769 
v.  Gemge,  49   Ind.  309,  294 

v.  State   Island   R.   R.  Co.,  53 
N.  Y.  450,  *        4 

Landwerlen   v.   Wheeler,   106  Ind. 

523,      251,  294,  368,  446,  565,  597,  747 
Lane  v.  Boicourt,  128  Ind.  420,  589 

v.  Crombie,  12  Pick.  177,  556 

v.  Dorman,  3  Scam.  (111.)  238,    159 
v.  Duchac,  73  Wis.  646,  597 

v.  Fox,  8  Blackf.  58,  630 

v.  Innes,  43  Minn.  437,  155 

v.  Miller,  17  Ind.  58,  202 

v.  Old   Colony,    etc.,    Co.,     14 
Gray,   143,  4S0 

v.  Pere  Marquette,  etc.,  Co.,  62 
Mich.  63,  401 

v.  Schlemmer,  114  Ind.  296, 108,215, 

532 
v.  State,  27  Ind.  10S, 
Lang  v.  Oppenheim,  96  Ind.  47, 
v.  Cox,  35  Ind.  470, 
v.  State,  67  Ind.  577, 
Langan  v.  Langan,  83  Cal.  61S, 
Langdon  v.  Bullock,  8  Ind.  341, 
Lange  v.  Dammier,  119  Ind.  567, 
Langley  v.  Warner,  1  N.  Y.  606, 


557 
606 

276 

69 

79 
671 
214 
210, 
709 
790 


Langohr  v.  Smith,  Si  Ind.  495, 
Langsdale  v.  Woolen,  99  Ind.  575,    517, 

„  52°>  533 
Lang    Syne    Gold    Mining    Co.  v. 

Ross,  20  Nev.  127, 
Lann  v.  People,  68  111.  303, 
Lantz  v.  Maffett,  102  Ind.  23,       12, 
Lapham  v.  Dreisvogt,  36  Mo.  App. 

275, 
La  Porte,  City  of,  v.  Organ,  30  N. 

E.  Rep.  2.  743 

Larey  v.  Baker,  S5  Ga.  6S7,  551 

Larillian  v.  Lane,  8  Ark.  372,  666 

Larman  v.  Huev.  13   B.  Mon.  436,      535 


18 

529 
672 

475 


TABLE  OF  GASES. 


lxxi  x 


\Hefi  rences  arc  to  Pages.] 


La  Rose  v.  Logansport,  etc.,  Bank, 

102  Ind.  332,                               757,  760 

Larsh  v.  Test,  48  I  ml.  130,  120 

Larson,  In  re,  96  N.  Y.  381,  13 

La  Rue  v.  Russell,  26  Ind.  386,  ^3's 

Laselle  v.  Wells,  17  I  ml.  33,       z,^,  689 

Lassiter  v.  Jackman,  iSS  Ind.  11S,  393, 

394.  395.  396 
v,  Simpson,  7S  Ga.  61, 

Latta  v.  Griffith,  57  Ind.  329, 
Latterett  v.  Cook,  1  la.  1. 
Latimer  v.  Sullivan,  30  S.  C.  in, 
Latona,  The,  3  Wash.  Tv.  332, 
Landsdalev.  Findley,  Hardin,  151, 
Laughlin  v.  City  of  Lamasco,6  Ind. 

223. 
Lavelle  v.  Skelly,  24  Hun.  642, 
Laverty  v.  State,  109  Ind.  217, 


739 
179 
56S 
73^ 
^3 
344 


59o 

9i 

26,  394, 

395 
411 

756 

20S 


v.  Woodward,  16  la.  1, 

Law  v.  Jackson,  S  Cow.  746, 

v.  Nelson,  14  Col.  409, 

v.  Nelson  (Col.),  24  Pac.Rep.  2,  323 

Lawler  v.  Alton,  S  Ir.  L.  160,  338 

v.  Couch,  So  Ind.  369,  2S2 

v.  McPheeters,  73  Ind.  577,  65S,  689 

7  Tex.  250,  672 

Harrington,  75  Ind.  379,  206. 


v.  Whife, 
Lawless  v 


279-  345,  7 


6S 


Lawrence  v.  Ballon.  50  Cal.  25S,        12S 
v.  Beecher,  116  Ind.  312,        73,  4SS, 

603 
v.  Clark,'  14  Mees.  &  W.  249,  697 
v.  Commonwealth,  86  Va.  573,  239, 

254 
v.  Farley,  73  N.  Y.  187, 
v.  Grambling,  13  S.  C.  120, 
v.  Howell,  52  la.  62, 
v.  Monroe,  43  Kan.  125,  408 

v. United  States,  2  McLean, 581,  311 
v.  Wood,  122  Ind. 452,  105,  263,  t,?,^ 

453 

v.  Wilcock,  11  A.  &  E.  941, 

Lawrenceburgh,  etc.,  Co.  v.  Hinkle, 

119  Ind.  47,  562, 

v.  Montgomery,  7  Ind.  474, 

v.  Smith,  3  Ind.  253, 

Lawson  v.  Bachman,  Si  N.  Y.  616,  697 

v.  Glass,  6  Col.  1^4,  537 

v.  Hilgenberger,  77  Ind.  22         6S7 

v.  Moore.   \\   Ala.  274,  70 

v.  Pulaski  Co.,  3  Ark.  1,  10^ 

Lawton  v.  Case,  73  Ind.  60,  5158 

Lay  v.  Lawson,  2^  Alii.  (Pa.)  377,     674 

Layman  v.  Buckner,  do  Ind.  402,       296 

v.  Grayhill.  14  Ind.  166,  1S0 

v.  Shultz.  60  Ind.  541,  561; 


51.5 
411 

2S6 


4-4 

775 

691 

61 


Le  Guen  v.  Gouverur,  1  Johns.  Cas. 

-1  '/'■ 
Le   Moyne  v.  Harding,  1 32   11!.  78,         \\ 
Le  Roy  v.  Clayton.  3  Sawy.  493,  12 

v.  Piatt,  4  Paige'.  77,     '        593.734 
Leabo  v.  Goode.  67  Mo.  126,  545 

Leach  v.  Blakely,  34  Vt.  134,         1  - 
Leach  v.  Leach^  2   T.  &  C.  (N.  Y.) 

657,  5S7 

Leaf  v.  Butt,  1  Carr.  ,\:  M.  451,  697 

Learmoth  v.  Veeder,  1 1  Wis.  13S,  89 

Leard  v.  Leard,  30  Ind.  171,         57,  474 

Leary  v.  Dyson,  98  Ind.  317,  90 

v.  Moran,  106  Ind.  560,  554 

v.  New,  90  Ind.  502,  666 

v.  Smith,  Si  Ind.  90,  26S 

v.  Territory,  3  Wash.  Ty.   13,  453 
Leavitt  v.  Judge  of  Supr.   Ct.,  52 

Mich.  595,  438 

Ledfordv. Ledford,95 Ind.283,  ^y>,  572 
Lee  Chuck  v.  Quan  Wo  Chung  Co., 

Si  Cal.  222,  176 

Lee  v.  Basey.  85  Ind  543,  282 

v.  Hassett,  39  Mo.  App.  67,  545 

v.  Lord,  75 'Wis.  35, 

v.  Merrick,  S  Wis.  229, 

v.'Stahl,  13  Col.  174, 

v.  State,  SS  Ind.  256, 

v.  Stowe,  57  Tex.  444, 


I25 
55" 
49- 
774 
73 


v.  Tillotson,  24  Wend.  337,  127,  414 


4« 

70 

43- 

677 

7iS 

63 


v.  Watson,  1  Wall.  337, 
Leech  v.  Perry,  77  Ind.  422, 

v.  State.  7S  Ind.  570, 
Leedom  v.  Lambaert,  80  Pa.  St.  3S1, 
Leeds  v.  Boyer,  59  Ind.  2S9, 

v.  Richmond,  102  Ind.  372, 
Leedy  v.  Nash,  67  Ind.  311,        396,  736 
Leese  v.  Sherwood,  21  Cal.  164,  76 

Leever  v.  Hamill,  57  Ind.  423,  296 

Lefevre  v.  Johnson,  7c;  Ind.  554,  536 
Leffel  v.  Obenchain,  90  Ind.  50,  207.  70S, 
Lefferts  v.  State,  49  N.  J.  L.  26,  77^ 
Lefler  v.  State.  122  Ind.  206, 
Leftwich     v.    Commonwealth,     20 

Gratt.  710, 
Leftwich  v.  Leftwich.  4  Wall.  1S7, 
Legate  v.  Marr,  8  Blackf.  404, 
Legg  v.  Drake.  1  Ohio  St.  286, 
Leggett  v.  Harding.  10  Ind.  414, 

v.  Humphrevs,2i  How. 66, 

v.  llydr.  58  N.  Y.  272. 
Lehman  v.  Honks.  121   I  nd.  541,  67S,  6S9 

v.  Rothbarth,  1 1 1   111.  194,  33 

Leib  v.  Butterick,  68  [nd.  [99,  ^21 

Leimpo  v.  State  2S  Tex.  App.  179,  677 
Lemke  v.  Dageling,  52  Wis.  498,  481 
Lennox   v.   Knox,  etc.,  Co.,  62    Me. 

322.  787 

Lentz  v.  Martin.  7^  Ind.  22S,     292,   526, 

7i8 


253 

24S 
770 
3i- 
5M 

67S 

3" 

547 


lxxx 


TABLE  OK  CASES. 


[References  a 

Leonard  v.   Armstrong,    73    Mich. 

577-  6i9 

v.  Blair,  59  Ind.  510,  669 

v.  Gibson,  6  111.  App.  503,  327 

v.  Warriner,  20  Wis.  41,  755 

Lerch  v.  Emmett,  \\  End.  331,  756 

I.      hi  v.  Territory ,  1  Wash.Ty.  13,  792 

6S0  . 

X 

562 

21 

217 

5-.1 
16S,  50S 

2  54,  255 


Leslie  v.  State,  S3  I  nd.   [So 
Lesser  v.  Banks,  46  Ark.  482, 
Lester  v.  Berkowitz,  125  111.  307, 

v.  Brier,  88  Ind.  296, 

v.  Howard,  24  Md.  233, 

v.  Lester,  70  Ind.  201, 
Lestrade  v.  Barth,  17  Cal.  2S5 
Lett  v.  Horner,  5  Blackf.  296, 
Leverick  v.  State,  105  Ind.  277, 
Leveringe  v.  Dayton,  4  Wash.  C 

C.698,        _        '  754 

Levi  v.  Karrick,  15  la.  414.         457,  45S 
Levy  v.  Chittenden.  120  Ind.  37,       520, 

5-1,  524>  7*9 

v.  State,  6  Ind.  2S1,  36 

Lewis  v.  Babcock,  iS  Johns.  443,       604 

v.  Bortsfield,  75  Ind.  390,     393,  397, 

6« 
v.  Brackenridge,  1  Blackf.  112, 
v.  Campau,  14  Mich.  458, 
v.  Darling,  16  I  low.  I, 
v.  Edwards,  44  Ind.  333, 
v.  Ewing,  70  Ind.  2S2, 
v.  Godwin  (Ind.).  27  N.  E.  Rep. 

563, 

v.  Lewis,  30  Ind.  257, 

v.  Lewis,  20  Mo.  App.  546, 

v.  New  York,  etc.,  Co.,  123  Ind. 

4<A  7-9. 

v.  Owen,  64  Ind.  446, 
v.  Prenatt,  24  Ind.  9S, 
v.  St.  Louis,  etc.,  Co.,  59  Mo. 

495- 

v.  State,  iS  Tex.  App.  401, 
V.  Van  Dusen,  25  Mich.  351, 
v.  Varnum,  12  Abb.  Pr.  305, 
Lexington,   etc.,   Co.   v.  Paver,    16 

Ohio.  324, 
Leyner  v.  State,  S  Ind.  490,       255,  743 

77', 
Libbv  v.  Husbv,  2S  Minn.  40,  675 

Lichtenfels  v.  State.  53  Ind.  161,       243. 

245.  24r> 
Lichty  v.  Clark.  10  Neb.  472, 
Lick  v.  Diaz,  37  Cal.  437, 
Lieb  v.  Lichtenstein,  121  Ind.  4S3, 
Lienpo  v.  State.  28  Tex.  App.  179, 
Life,  etc.,  Ins.  Co.  v.  Adams,  9  Pet 

573. 

v.  Adams,  8  Pet.  306, 

Life,  etc.,  Co.  v.  Wilson, 8  Pet.  291,  439 
Ligare  v.  California,  etc.,  Co..  76 
Cal.  610,  1  ss 


630 

83 

4S3 

29^,  605 

76S 

161 

698 
459 

745 
J79 
159 

494 
577 
327 
601 

615 
743. 

745,  761,  ~ 


777 
479 
596 
252 

5*9 

439 


;-.    to  P 

Liggett  v.  Firestone,  102  Ind.  514.  2-1, 

'374-  37s 

v.  1  [inkley,  [20  I  nd.  ;v7-  7s'- 
Liliensterne  v.  Lewis  (Tex.).  12  S. 

W.  Rep.  750,  6S 

Lillard  v.  Ruckers,  9  Yerg.  64,  004 
Lillie  v.  Trentman  (  1ml.),  29  X.  E. 

Rep.  40;.  1   ;- 

Lilly  v.  Dunn.  96  Ind.  220,  671 
Limerick,  Petitioner.  In  re,  18  Me. 

1  S3,  17S 

Linahan  v.  Desmond,  150  Mass.  292,  030 

Linard  v.  Crossland,  10  Tex.  402,  569 

Linck  v.  Schouel,  32   111.  App.  17,  570 

Lincoln  v.  Claflin,  7  Wall.  132,  740 

V.  Ilapgood,  11  Mass.  3-0,  718 

v.  Iron  Co.,  103  U.  S.  412,  581 

v.  Milstead.  38  Mo.  App.  350,  4  17 

Lincoln,  etc.,   Works    v.    Hall,    27 

Neb.  874,  94 

Lindley  v.  Dakin,  13  Ind.  3SS,  62S 
v.  Kelley,  42  Ind.  294,          640,  644 
Lindsey    v.    Henderson,   27    Miss. 

" 5°i,  763 

Line  v.  Huher.  57  Ind.  261,         297,  785 

Linnes  v.  Benncr,  52  Ind.  195,  76 

Lingenfelser  v.  Simon,  49  Ind.  S2,  603 

Linsman  v.  Huggins,  44  Ind.  474,  269 

Lipes  v.  Hand.  104  Ind.  503,  20 

Lipp  v.  Hunt,  30  Neb.  469,  494 

Lipperd  v.  Edwards.  39  Ind.  165,  604 

Lippincott  v.  Ledyard,  S  Phila.  iS,  192 

Usher  v.  Pratt,  9  la.  59,  793 

List  v.    Jockheck  (Kan.),  27    Pac. 

Rep.  184.  f>6 

v.  Kortepeter,  26  Ind.  27,     615.  079 

Lister  v.  Baker,  6  Blackf.  439,  793 

v.  McNeal,  12  Ind.  302,  524 

v.  Stanley,  1    Mod.  112,  102 

Litchfield     v.     Richards    Register, 

etc.,  9  Wall.  575.  435 

Litt  v.  Martindale,  18  C.  B.  314,  10 
Littan  v.   Wright  School  Tp.,  127 

Ind.  Si,  73S 

Littcll  v.  Bradford.  8  Blackf.  1S5,  315 

Little  v.  Bowers,  134  U.  S.  547,    14,  124 

v.  Bunce,  7  N.  II.  485,  495,  496 

v.  Jacks.  68  Cal.  3  |  {,  20S 

v.  State.  90  Ind.  338,  4 

Little  Miami,  etc.,  Co.  v.  Wetmore, 

19  Ohio  St.  1 10,  662 
Little  Rock,  etc.,  Co.  v.  Cavenesse, 

4S  Ark.  106,  623 

v.  Tankersly  (Ark.),  14  S.  W. 

Rep.  1099,  549 

Littleton  v.  Smith,  119  Ind.  230,  250, 

291,  590,  647,  668 

Littlefield  v.  Perry,  21  Wall.  205,  50 

Littlejohn  v.  Greeley, 13  Abb.  Pr.  41,  616 

Livermore  v.  Campbell,  52  Cal.  76.  4^6 


TABLE  OF  CASES. 


XXXI 


539 
443 
611 


[Hi  ft  >■•  .: 

Livesey  v.  Livesey,  30  Ind.  39S,        393, 

670 
Livigood    v.    Livigood,   6    Blackf. 

-I'M 
Livingston  v.  Dunlap,  99  N.  C.  268,  50S 
v.  Mayor,  8  Wend.  85,  26 

Llovd    v.    Hannibal,  etc.,    Co..     ^3 

Mo.  509, 
v.  Reynolds,  26  Neb.  63, 
Lobb  v.  Lobb,  26  Pa.  St.  327. 
Locke  v.  Merchants'  Nat.  Bank,  66 

Ind.  353,      403.  637,  63S,  70S,  71S,  719 
Lockhart  v.  State,  92  Ind.  452,  255,  531, 

737 

Lockwood  v.  Dills,  74  Ind.  56,  724 

v.  Quackenbush,  S3  N.  Y.  607,  413, 

5S7 

v.  Rose,  125  Ind. 5SS,    536,  70S,  7SS 

Lodge  v.  Tweell,  135  I'.  S.  232,  99 

Loeb  v.  Mathis,  37  Ind.  306,      420,  421, 

735 

Loewe  v.  Reismann,  S  Bradw.  525,  701 

Lofton  v.  Moore,  83  Ind.  112,     1S7,  iSS 

Logan  v.  Harris.  90  X.  C.  7,  77 

v.  Kiser,  25  Ind.  393,  558 

v.  Logan,  77  Ind.  55S,  120,  570 

v.  Pennsylvania  Co.,  132  Pa.  St. 

403;  65,  S4 

v.  Vernon,  etc..  Co., 90  Ind.  552,  592 

Logan    Branch   Bank,    Ex  parte,    1 

Ohio  St.  433,  18,  430 

Logansport,  City  of,  v.  Dvkeman, 

116  Ind.  15,  529,  662 

v.  Humphrey,  106  Ind.  146.  491 

v.  La  Rose,  99  Ind.  117.  C06 

v.  Shirk  (Ind.),  28  N.  E.  Rep. 

53S,  55S 

v.  Wright.  25  Ind.  512,  74S 

Logansport,  etc.,  Co.  v.  Davidson, 

51  Ind.  472.  757,  760 

Lohman  v.  People.  1  N.  Y.  379,        737 

Lomax  v.  Mitchell,  93  111.  579,  709 

Londoner  v.  People.  15  Col.  557.       57S 

Long  v.  Emery,  49  Ind.  200,  99 

v.  Fox,  100  111.  43,  126 

v.  Hitchcock.  3  Ohio.  274,  141 

v.  McClure,  5  Blackf.  319,  101 

v.  State,  12  Ga.  293.  ^34 

v.  State,  46  Ind.  5S2,     256,  679,   71 

v.  State,  95  Ind.  481,     250.  531,  579 

v.  Straus,  107  Ind.  94.  305 

v.  Town  of  Brookston,  79  Ind. 

1 S3.  162,  766 

v.  Williams.  74  Ind.  115,       562,   749 

v.  Highan, 89 Ind. 352, 170,764,  774, 

775 
lale  v.  Brown,  4  Wash.  C.  C. 
148,  74 

Loome  v.  Burt.  16  S.  W.  Rep.  439.  7SS 


re  to  Pa 

Loomis    v.    Wabash,  etc.,    Co.,    17 

Mo.  App.  340, 
Looney  v.  Bugh,  Minor  (Ala.),  413, 
Lord  Mohun's  Case,  6  Mod.  59, 
Lord  v.  Goldberg.  Si  Cal.  596, 

v.  Veazie,  8  How.  251,         124. 
Loring,  Ex  parte,  94  U.  S.  4»S, 

v.  Folger,  7  Gray,  505, 
Losey  v.  Pond,  94  Ind.  67,  112, 

Lott  v.  Swezey,  29  Barb.  87, 
Lotz  v.  Briggs,  50  Ind.  346,        619, 
Loucheine  v.  Strouse,  46  Wis.  487, 
Louden  v.  Louden,  63  How.  411, 

v.  Louden,  65  How.  Pr.  411, 
Loudenback  v.  Lowry,  6  Ohio  C. 

C.  65, 
Louders  v.  Beck,  92  Ind.  49,       759, 
Louisville,   etc.,   Co.    v.  Ader,    no 
Ind. 

v.  Balch,  105  Ind.  93,   663,  694, 

v.  Poland.  70  Ind.  595,   159,  349, 

v.  Puck,  116  Ind.  566, 

v.  Cauley,  119  Ind.  142,       371, 
580, 

v.  Corps,  124  Ind.  427,  393, 

v.  Crunk,  119  Ind.  5  (.2, 

v.  Donnegan,  in  Ind.  179,  368, 

v.  Etzler,  119  Ind.  39,  19, 

v.  Falvev.  104  Ind.  409,         4S6, 

v.  Flannagan,  113  Ind.  4SS,  5S2, 


Fox,  101  Ind.  410,      391 
Frawlev,  no  Ind.  iS, 


401, 

575- 
696, 
.  Godman,  104  Ind.  490, 
.  Grantham,  104  Ind.  353,    692. 
.  Green,  120  Ind.  367,   70S,  709, 
.  Grubb,  SS  Ind.  85, 
.  Harrigon,  94  Ind.  245,      757. 
.  Harrington,  92  Ind.  4^7, 
.  Hart,  119  Ind.  273,    391.  575, 
696,  700,  712,  716, 
.  Head,  So  Ind.  117, 
.  Hendricks,  12S  Ind.  462,  620, 

.  Henly,  8S  Ind.  S3S,  511, 

.  1  [ixon,  101  Ind.  337. 
.  Horton,  67  Ind.  546, 
.  Hubbard,  116  Ind.  193,    579, 
676,681, 
,  Jackson,  64  Ind.  39S,         349, 
,  Jones,  10S  Ind.  551, 
Kane.  120  Ind.  140,  5S0,  694, 

77P 
Krinning,  S7  Ind.  351. 
Lockridge,  93  Ind.  191, 
Nieii  Ind.  158. 

Orr,  8  (  Ind.  50, 


545 
770 

- 

435 
140 
566 

497 

452 

116 
270 

6S1 
769 

395 
709 

35i 
716 

7°8 

395 

2SS 

37o. 
446 

475 
c77- 
702 
696, 
709 
41S 

581. 
708 

7-.i 
774 
710 

572 

,  76° 
636 

777 

787, 

605 
394 
350 

444 

785 

57 1 

90 

630 

57i 


lxxxii 


TABLE  OF  CASES. 


'  /i,  i,  >■■  /.'•  es  are  to  Pages^\ 


395 


Louisville,  etc.,  Co.  v.  Overman.  88 
Iiui.  1 15. 
v.  Peck.  99  Ind.  68,       393 
v.  Pedigo,  10S  Ind.  4S1, 
v.  Reynolds,  118  Ind.  170, 
v.  Rush,  127  Ind.  545, 
v.  Schmidt.  io6  Ind.  73, 
v.  Spain,  6]  Ind.  460, 
v.  State.  2<;  Ind.  177. 
v.  Stommel,  126  Ind.  35, 
v.  Thompson,  107  Ind.  442, 


524 
396 
579 
5S7 
627 
588 
394 
591 
707 
554,  626, 
7S6 
753 
79 


v.  Wright,  115  Ind.  37S, 
Lounsburv  v.  Purdy,  iS  N.  Y 


Lucas  v.  Shepherd,  16  Ind.  36S,  306 

v.  Smith,  42  Ind.  103,  567 

v.  Smith,  ^4  Ind.  530,  736 

v.  State.  86  Ind.  1S0,  162 

Luck  v.  State.  96  Ind.  299,    531,  53S,  579 

Lucketts  v.  Townsend,  3  Tex.  119,  666 

Lucy,  The,  8  Wall.  307, 

Ludlam  v.  Broderick.  3  (jr.  269, 

Ludlow  v.  Ludlow,  109  Ind.  199, 


v.  Turner,  Si  Kv.  4S9, 
v.  Wilson.  13S  U.  S.  501, 
v.  Wood,  113  Ind.  544,  1S7,  402,  414 
537>  70S 
v.  Worley,  107  Ind.  320,      579,  692. 

761 

747 

SlS>  4°7, 

521 

Love  v.  Dickerson,  85  N.  C.  5,  614,  616 

v.  Hall,  76  Ind.  326,      2S7,  525,  647 

v.  Mikols.  12  Ind.  439,  S3 

v.  Tinsley,  32  W.  Va.  25,  4S1 

Loveland  v.  Gardner,  79  Cal.  317,     481 

Lovell  v.  Martin,  12  Abb.  Pr.  17S,     733 

v.  State,  45  Ind.  550,  679 

Lovinger  v.  First    Nat.    Bank,    Si 

Ind.  354,  568>  6l° 

Low  v.  Adams.  6  Cal.  277,  334 

v.  Crown  Point  Mining  Co.,  2 

Nev.  75,  68>  74 

Lowe  v.  Ryan,  94  Ind.  450,         54S,  549 

v.  State,  46  Ind.  305,  40S 

Lowen  v.  Crossman,  8  la.  325,  666 

v.  Knox,  10  Cal.  4S0,  109 

Lowden  v.  Lowden.^S  Ind.  53S,  370,  698 

Lower  Chatham,  In  re.  35  N.  J.  L. 

497.  26 

Lower  v.  Franks,  115  Ind.  334,  603,  661, 

747 
Lowerv  v.  Carver,  104  Ind.  447,  771 

v.  "Howard,  103  Ind.  440,  88 

Lowman  v.  Sheets,  124  Ind.  416,        694 
Lowndes  v.  Miller.  25  S.  C.  n<),  66 

Lownsburv  v.   Rakestraw,  14  Kan. 

151,  201 

Lowrie  v.France,  7  Neb.  191,  7^6 

v.  Salz,  75  Cal.  7S2 

Lowrv  v.  Dutton.  2S  Ind.  473,  567 

V.  Francis.  2  Yerg.  534,  305 

v.  McAlister,  S6  Ind.  543,  566 

Loy  v.  Loy.  90  Ind.  404.  757,  760 

Luark  v.  Malone,  34  Ind.  444,    601,  603 

Lucas  v.  Beale.  10  C.  B.  739,  602 

v.  Board.  44  Ind.  524,  492 

v.  Brooks,  iS  Wall.  436,      369,  509, 

691 
v.  Hawkins.  102  Ind.  64.  8S 


104 
267 
393- 
395 
728 


624 
74§ 

294 


v.  Walker,  67  Ind.  353, 
Lufkins  v.  Collins  (Idaho),  10  Pac 

Rep.  300, 
Luirance  v.  Luirance,  32  Ind.  19S, 
Lundberg  v.  Single  Men's  Endow 
ment  Association,  41  Minn.  505, 
Luntz  v.  Greve,  102  Ind.  173,  52,400,  56 
Lures  v.  Botte,  2(>  Ind.  343,  777 

Lurton  v.  Carson.  2  Blackf.  464,  773 
Luthe  v.  Luthe,  12  Col.  429,  472.  17- 
Lutz  v.  Crawfordsville,  109  Ind.  466,  218 
Lybecker  v.  Murray,  58  Cal.  1S6,  513 
Lycoming,  etc.,  Co.  v.  Rubin,  79 

"111-  402,  657 

Lyman  v.  Redman,  23  Me.  2S9,         577 

Lynam  v.  Buckner,  60  Ind.  402,  614 

Lynch  v.  Dunn,  34  Cal.  518,  44S 

v.  Jennings, 43  Ind.  276,288,748,  766 

v.  Leurs,  30  Ind.  411,  554 

v.  State.  9  Ind.  541,  534 

Lyon  v.  Blossom,  4  Duer.  (N.  Y.) 

"31S,  s9 

v.  Davis,  in  Ind.  3S4,  772,  774,775 

v.  Merritt,  6  Paige,  473,  493 

v.  Travelers  Ins.  Co  ,  55  Mich. 

141,  126 

Lyons  v.  Bain,  1  Wash.  Ty.  4S2,  126,  350 

v.  People,  6S  111.  271,"  674 

v.  Planters,  etc.,  Bank,  S6  Ga. 

485. 

v.  Teal,  28  La.  Ann.  592, 

v.  Terre    Haute,  etc.,   Co.,  101 
Ind.  419, 
Lvons,  Town   of,  v.  Cooledge,  S9 

'111.  529. 
Lytle  v.  Lytic,  37  Ind.  2S1, 
v.  Lytle,  94  X.  C.  522, 

M 

McAfee  v.  Revnolds  (Ind.),  2S  N. 

E.  Rep.  425.'  192,475.476,481 

McAllister  v.  Detroit,  etc.,  Co.,  85 

Mich.  453,  65& 

v.  McAllister,  12  Ired.  L.  184,    657 

v.  State.  Si   Ind.  256,       100,  101,  120 

v.  Willey,  60  Ind.  195,  29S 

McAlpine  v.  Sweetser,  76  Ind.  7S.    147, 

2S4,  504 
v.  Ziller,  17  Tex.  508,  656 


5Si 
549 

640 

672 
170 
496 


TABLE   OF  CASKS. 


A',  ft  r,  tit  i  s  are  to  J ' 


604 
632 

15S 
50S 

5i3 

7SS 

532 

573 


McArthur  v.  Lane,  15  Me.  245, 

v.  Lefler,  1 10  End.  526, 

v.  Schultz,  7S  la.  3A4,  13, 

McBride  v.  Lathrop,  24  Neb.  93, 

v.  Northern,  etc.,  Co.,  19  Ore. 
64. 

v.  Settles  (Tex.),  16  S.  W.  Rep. 
4--, 

v.  Stradley,  103  Ind.  465, 

v.  Thompson,  8  Ala.  650, 
McCaffrey  v.  Corrigan,  49  Ind.  175.  488, 

595 

McCall  v.  Hitchcock,  7  Bush.  615,      70 

v.  Trevor,  4  Blackf.  496,  315 

McCallister  v.  Mount,  73  Ind.  559,  267. 

395-  6S9 
McCalop  v.    Fluker,   12    La.    Ann. 

55 *•  4S3 

McCamack  v.  Earhart,  72  Ind.  24,     159 
McCammack  v.  Clark,  16  Ind.  320,  601 

7S4< 
-  792 
McCammon 

Ind.  545, 
McCandless  Tp.  Road,  In  re,  no 

Pa.  St.  605, 
McCann  v.  Cooler,  30  Neb.  552, 
McCardle,  Ex  parte,  7  Wall.  506, 


McCammack,  S6  Ind.  3S7, 

Cunningham,    10S 


691 


769 
61, 


McCardle  v.  McGinley,  86  Ind.  53S,  1  ^9. 

170 
McCart  v.  Squire,  150  Mass.  4S4,  747 
McCarthy  v.  Garroghty,   10  Ohio 

St.  43s."  635 

v.  Kitchen,  59  Ind.  500,  579 

McCarty  v.  Chicago,  etc.,  Co.,  34 

111.  A  pp.  273.  678 

v.  Hamaker,  S2  Va.  471,  7S 

v.  State,  1  Blackf.  240,  30S 

McCaskey  v.  Graff,  23  Pa.  St.  321,     666 

McCauley  v.  Murdock,97  Ind.  229,  791 

McCaw  v.  Blewitt,  1  Bailey  (S.  C.) 

Ch.  9S, 
McClain  v.  Sullivan,  S5  Ind.   174, 


4S3 
295, 
296 


McClary  v.  State,  75  Ind.  260,  255,  579 

620 

McClean  v.  Hertzog,  6  S.&  R.  154,  697 

McClellan  v.  Bond,  92  Ind.  424,  687,  6SS 

v.  Binkley,  7S  Ind.  503,  1S0 

McClelland  v.  Allison,  34  Kan.  155,  324 

v.  Louisville,  etc.,  Co.,  94  Ind. 

276,  562 

McClintock  v.  Theiss,  74  Ind.  200,   100, 

293,  719 
McCloskev    v.    Indianapolis,    etc., 
Co.,  67  Ind.  S6,  405 

v.    Indianapolis,    etc.,    Co.,    S7 
Ind.  20,  20S,  318,  321 

McClure  v.  McClure,  19  Ind.  (85,     393 


539 

479 
614 

391 

489 
669 


McClure  v.  State.  77  Ind.  2S7,  531 
v.  State,  116  Ind.  169, 

v.  State,  1  Yerg.  206,  528 

v.  Taylor,  3S  Ind.  427,  44S 

v.  White,  9  Ind.  208,  43 

McCole  v.  Loehr,  79  Ind.  430,   354. 

v.  State,  10  Ind.  50,  \~ 

McCollum  v.  Eager,  2  How.  61,  73 

v.  Uhl,  12S  Ind.  304,  603 

McComas  v.  Haas,  93  Ind.  276,  507, 

563>  565- 
v.  Haas,  107  Ind.  512,  702 

McComb  v.  Spangler,  71  Cal.  41S,     4S9 
McCombs  v.  Guild,  9  Lea.  Si, 
McConnell  v.  Harrington,  10S  Ind. 
405, 

v.  Kitchens,  20  So.  Car.  430, 
v.  Osage,  So  la.  293, 
v.  Wall,  67  Tex.  352, 
McCool  v.  State,  7  Ind.  37S, 
McCorkle  v.  State,  14  Ind.  379,  24S.  254 
McCormack   v.  Phillips  (Dak.),  34 

N.  W.  Rep.  39,  260 

McCormick  v.  Central  R.  R.  Co., 

75  Cal.  506,  791 

McCormick,  etc.,  Co.  v.  Gray,  100 
Ind.  285,  614,  615,  616 

v.  Gray,  114  Ind.  340,  395,  702, 

772,  790 
McCormick  v.  Hickey,  24  Mo.  App. 
362, 

v.  Hubbell,  4  Mont.  87, 
v.  Hyatt,  2^  Ind.  546, 
v.  Laughran,  16  Neb.  S7, 
v.  Maas,  121  Ind.  132, 
v.  Smith,  127  Ind.  230, 
v.  Spencer,  53  Ind.  550,         294, 
v.  St.  Louis,  etc.,  Co.,  26  Mo. 
App.  65, 

v.  \\  ebster,  S9  Ind.  105, 
McCourtnev  v.  Fortune,  42  Cal.3S7,  91 
McCoy   v.   Able   (Ind.),  30  N.  E. 

Rep. ,  773 

v.  McCoy,  ^  W.Va.  60,  46,  7S,  491 
v.  State.  121  Ind.  160,  196,  75S 

v.  Trucks,  121  Ind.  2^2.  165 

v.  Walls.  30  N.  E.  Rep. ,        754 

McCracken  v.  Cabell,  120  Ind.  266. 

126,  350 
v.  Superior  Court,  S6  Cal.  74,     319 
McCranev  v.  Childs,  n  la.  54,  2S4 

McCray  v.  Humes,  116  Ind.  103,  669 
McCreary  v.  Cockrill,  3  Kan.  37,  7  ; 
McCreery  v.  Everding,  44  Cal.  284,  140 
McCrorv  v.  Anderson,  103  Ind.  12,  320. 

322,  662 

McCulloch  v.  Dodge.  S  Kan.  476,  68,  71 

v.  Hollingsworth,  27  Ind.  115,     599 

McCullum  v.  Eager.  2  How.  61,  64 

McCurdy  v.  Love,  97  Ind.  62,    219,  225 


581 

3l7 
397 

73i 
753 
662 


:9 

:S+ 


I  :xxiv 


TABLE   OF  CASES 


A\  ferences  a 

Curdy  v.  Middlet >n,  90  Ala.  9 1 

•   niel  \ .  Lee,  37  Mi ».  20  |.  590 

v.  Mattingly,  72  [nd.  349,  768 

v.  Stokes,  i')  S.  C   1  745 

McDermitt  v.  Hubank,  25  Ind.  232,  ;oo, 

5&8 
Ml  i.rmott  v.  Iowa,  etc.,  Co.  ( la.). 

47  N.  W.  Rep.  [037,  792 

McDonald  v.  Carson.  95  N.  C.  377,  097 
v.  Early,  24  Neb.  Sib,  792 

\    1  Ilfes,  6i  Ind.  279,  774 

\    Geisendorff,  128  Ind.  153,        7<><> 
v.  Stader,  10  Ind.  17:.  187,  300 

v.  Union,  etc.. Co..  42  Fed.  Rep. 

5S2 

McDonel  v.  State,  90  Ind.  320,  577 

•ongal  v.  Fleming  4  Ohio,  3SS.  765 

McDonoughv.  Nichoi  ;on,  46  Mo.  35,  70 

Mi  how  ell  v.  Crawford,  11   Gratt. 

377'  535 

Mi  Duffee  v.  Bentl  \,  27  Neb.  380,  736 
McElfatrick  v.  Coffroth,  29  Ind.  37,  758 
McElfresh  v.  Guard,  32  Ind.  408,  64S 
McElhoes  v.  Dale,  Si  Ind.  67,  790 

McEndree  v.  McEndree,  12  Ind.  97,  106, 

349 
McEneney  v.  Sullivan,  125  Ind.  407.   286 

398' 

4H>  55° 

77o 

6-?6 


McFadden  v.  Fritz,  no  Ind.  1, 


v.  Wilson,  96  Ind.  253, 

din  v.  David.  78  Ind.  445, 

McFall  v.  Commonwealth,  2  Metcf. 

(Ky.)  394,  27 

v.  Howe  Co.,  90  Ind.  14S,  566 

M    Farland  v.  Hall,  17  Tex.  076.  75 

\ .  McFarland,  40  Ind.  458,  277 

Mi  Feters  v.  Pierson,  15  Col.  201,      746 

M    Garrahan  v.  New  Idra  Co.,  49 

Cal.  331,  456 

McGarvey  v.Ford  (N. M.),27  Pac. 

115.  682 

Mi  Ge<  v.  Robbins,  58  Ind.  463,        60S 
v.  Stal^.  103  Ind.  444,  554,    ^>2 

McGill  v.  Wallace,  22  Mo.  675.'         41  | 
McGillis  v.  Bishop,  27  111.  App.  53,  487 
McGinnis  v.  Gabe,  78  Ind.  457,  511,  734 
\  .  Mayor,  etc.,  6  Daly.  416,  521 

McGlaughlin  v.  O'Rourke,   12    la. 

459i  156>  45s 

lennan  v.   Mayowski,  90  Ind. 
[50,  8S,  290 

roldrick  v.  Slevin, 43  Ind.  ^22,    393 
McGowan  v.  State,  9  Yerg.  184,        578 
v.  Wilmington,  etc.,  Co.,  95  N. 
C.417,  V>S,  50S 

rowen  v.  Campbell,  28  Kan.  215,  534 
McGown  v.  Remington,    12  Pa.  St. 

56,  32 

M   draw  v.  Franklin,  2  Wash.  17.    544, 

549 


ft  tv  Pages .] 

McGregor  v.  Hobbs,  125  Ind.  487,     393 
\.  Pearson,  =;i  Wis.  122.  112 

McGrew  v.  McCarty,  78  1  nd.  496,  88,  558 
McGrime  v.  State,  ^>  Ind.  140,  790 

McGuffey  v.  McClain  (Ind.), 30  N. 

IC.  Rep.  296,  739 

Mel  high  v.  Chicago,  etc.,  Co.,  41 

Wis.  75,  483 

Mcllhaney  v.  Holland,  in   Pa.  St. 

634.  93.325 

Mcllvain  v.  Emery.  SS  Ind.  298,        766 

v.  State,  80  Ind.  69,        610,  692.  698 

Mcllwaine  v.  Adams,  46  Ind.  580,    113, 

269 
M'Intire  v.  Young,  6  Blackf.  496.  792 
Mcintosh   v.   Mcintosh,   79    Mich. 

[98,  61S 

Mi  I nt  vie  v.  Mclntyre, 24 Mo.  App. 

[66,  4S9 

Mcjilton  v.  Dove,  13  111.  486,  495 

McKim  v.Thompson,  1  Bland.  Ch. 

150,  82 

McKee  v.  McDonald,  17  Ind.  518,     793 

McKeen  v.  Board,  60  Ind.  280,   118,756 

McKenzie  v.  Ballard,  14  Col.  426,     160 

v.  Peck  (Wis.),  h2  X.  W.  Rep. 

-47-  '     475 

V.  Rhodes.  13    Abb.  Pr.  337.  116 

V.  State,  26  Ark.  334,  620 

McKesson  v.  Sherman,  51  Wis.  303,  567 

McKernan  v.  XeiV,  43  Ind.  503,  596 

McKinley  v.  First  Nat.  Bank,  118 

Ind.  375.  78S 

v.  Shank,  24  Ind.  25S,  507 

McKinney  v.  Jones,  55  Wis.  39,  535 

V.  McKinney,  8  Ohio  St.  423.      035 

v.  Monongahela  Co.,  2   Harris 

(Pa.),  65,     '  26 

V.  Shaw,  etc.,  Co.,  51  Ind.  219,    761 

v.  Springer,  6  Ind.  453,  301,  648 

v.  State,  101  Ind.  355,  671 

V.  State,  117  Ind.  26,  489 

McKinsey  v.  McKee,  109  Ind.  209,     50S 

McKnight  v.  Devlin,  52  X.  Y.  399,    401 

v.  Dnnlap,  4  Barb.  30,  587 

McLaughlin  v.  Ward,  77  Ind.  383,    713 

McKnight  v.  Knisely,  25  Ind.  336,       S2 

McFain  v.  State,  iS  Neb.  154,   '         617 

McLana  v.  Rusell,  29  Tex.  127,         ^27, 

McLanahan  v.  Universal  Ins.  Co., 

1  Pet.  169,  750 

McLane  v.  Bonn,  70  la.  752,  61 

McLaren  v.  Kehlor,  22  Wis.  297,       519 

McLaughlin  v.  Child,  62  Ind.  412,     '268 

v.  Doliei  ty,  54  Cal.  519,  96 

\  .  l'.ti  bison,  127  Ind.  474,  504 

v.  Janney,  6  Gratt.  609,  456 

v.  State,  66  Ind.  193,      91,  241,  243, 

246 


TABLE  OF  CA 


lx: 


ffi  ferenck  s  arc  /<>  Pages,  f 


570 
624 
601 
4S9 

449 
636 

525 

3i7 


McLead  v.  .Etna  Ins.  Co.,  107  Ind. 

394,  108 

McLean  v.  Burbank,  12  Minn.  530.  624 
v.  Equitable,  etc.,  Co.,  100  Ind. 

127,  644 

McLean  Co.  v.  Deposit  Bank,  Si 

Ky.  254,  5 

McLees  v.  Felt,  11  Ind.  21S,  614,  615 
McLellen  v.  Crofton,  6  Me.  307,  528 
McLennen  v.  Prentice,  79  Wis.  4S8,  490, 

7SS 
McLimans  v.  City  of  Lancaster,  57 

Wis.  297.  *      517 

McMahan  v.  Newcomer, S2  Ind.  565,  52 
v.  Works,  72  Ind.  19,  217 

McMahon  v.  Sankey,  35  111.  App. 

341- 

v.  Sankey,  133  111.  636, 
McMekin  v.  Richards,  Si  Ga.  192, 
McMillan  v.  Baker,  92  X.  C.  no, 

v.  Nye,  90  N.  C.  11, 
McMillen  v.  Terrell,  2^  Ind.  163, 
McMannus  v.  Smith,  ^  Ind.  211, 
McMinn  v.  Patton,  92  N.  C.  371, 

v.  Whelan,  27  Cal.  300,       572,  61S 
Mr  Mullen  v.  Clark,  49  Ind.  77,  27S 

McNamara  v.  Estes,  22  la.  246,  30,  653 
McNay  v.  Stratton,  109  111.  30,  61 

McNeal  v.  Oats  Co.,  51  Vt.  316,  16S 
McNeely  v.  Holliday,  105  Ind.  324,  268 
McNeil  v.  Home  Ins.  Co.,  30  Mo. 

App.  306,  762 

McNultyv.Batty,  10  How. (U.S.)  71,  21 
McNutt  v.  Dare,  S  Blackf.  35,  704 

v.  McNutt,  116  Ind.  545,  391 

McQuarrie  v.  Hildebrand,  23  Ind. 

122. 
McQueen  v.  State,  S2  Ind.  72, 

v.  Steward,  7  Ind.  1535, 
McQiiery  v.  Gilleland  (Ky.),  12  S. 

!Q37' 
McQuigg  v.  Dailey,  16  Ind.  324, 
Mc Sweeney   v.   Mc Miller,  96   Ind. 

298, 
McVey  v.  Heavenridge,30  Ind.  100,  207, 

3*3'  3J9 
McVickarv.  Wolcott,  4  Johns.  510,  455 
McWhinney  v.  Briggs,  85  Ind.  535 
McWhorterv.Heltzell,  124  Ind. 129.  215 
McWilliams  v.  Walthall.  77  Ga.  7.    492 
Mabey  v.  Atkins,  10  Wall.  419, 
Mabvv.  Baxter,  11  Heisk.  682, 
Mabry  v.  Ross,  1  llcisk.  -i>g. 
Machall  v.  Richards,  116  U.  S.  45 
Mack  v.  Grover,  12  Ind.  254,      ^96,  603 

v.  Parks,  8  Gray,  517.  540 

Maekey  v.   Baltimore,  etc.,  Co.,  iS 
Wash.  Law  Rep.  767,  (1^9 

v.  Commonwealth.  80  Kv.  345,    124 
Mackison  v.Clegg,S3  Ind.  .  55,  334,  335 


59° 
251 
792 

420 
540 

536 


4S3 
9 

513 
450 


Macklin  v.  Allenberg,  100  Mo. 337,   | 
v.  New   England,  etc.,  Co.,  33 

La.  Ann. 
Mackison  v.  Clegg,  95  Ind.  373,  GS2 

Mi    Lachlan    v.    McLaughlin,    126 

Hl.427,  92 

Macnevin  v.  Macnevin,  63  Cal.  1S6, 
Macullar  v.  Wall,  6  Gray,  ^07,  535 

Madden  v.  State.  1  Kan.  340, 
Maddox  v.  Pulliam,  5  Blackf.  20^,     287 
Madison,   etc.,    Co.    v.    Trustees.    8 

End.  528,  7-2 

v.  Whiteneck,  S  Ind.  217,  525 

Madgett  v.  Fleenor,  90  Ind.  517, 
Maghee  v.  Collins.  27  Ind.  83,  496 

Mahlman  v.  Williams  (Ky.),  12  S. 

W.  Rep.  335.  315 

Mahncke  v.  Tacoma,  1  Wash.  18,  86 
Malum  v.  Mahon,  19  Ind.  324,  37S.  032 
Mahone  v.  Manchester,  1 1 1  Mass.  72,  72 
Mahoney  v.  Keane,   28   N.  E.  Rep. 

9Lv  349 

v.  Robbins,  49  Ind.  146,        294.    5  n 
Mahony  v.  Mahonv,  41   La.  Ann. 

135.                           "  47^ 

Main  v.  Ginthert,  92  Ind.  1S0,  Si 
Mainigault  v.  Holmes,  1  Bailey  (S. 

C.)  Eq.  27S,  4SS 

Mairs  v.  Gallahue,  9  Gratt.  94,  663 

Makepeace  v.  Davis,  27  Ind.  3^2,  62S 

v.  Lukens,  27  Ind.  435,  178 

Malady  v.  McEnary,  30  Ind.  273,  1  S9 
Malin  v.  Kinney,  1  Cain.  Rep.  117. 


Malone  v.  Hopkins,  49  Ga.  221. 

v.  McClain.  3  Ind.  532,         308, 
Mallory  v.  Lamphear,  S  How.  Pr. 

491' 
Malott 


339 


> 

186 

572 

Go). 
601 
5-9 


State,  26  Ind.  93, 
Manchester  v.  Dodge,  57  Ind.  5S4, 
Mand  v.  Trail,  92  Ind.  521, 
Mandeville  v.  Riggs,  2  Pet.  4S2, 
Mandlove  y.  Lewis,  9  Ind.  194, 
Maner  v.  .State.  S  Tex.  App.  361. 
Mangels  v.   Mangels,  S  Mo.  App 

603,  160 

Manhattan   Life  Ins.  Co.  v.   Doll, 

So  Ind.  1 13,  766 

Manifoldv.Jor.es,  117  Ind.  212,         411 
Manly  v.  Hubbard.  9  Ind.  230,  62S 

Mann   v.    .Et.ia    Ins.   Co..  3S  Wis. 
114,  31S 

v.  Glover.  14  N.  ].  L.  195,  736 

v.  Haley,  \;  Cal.  63,  9S 

v.  I.cw  is.  1  ^  W.  Va.  215,  557 

v.  Marsh,  35  Barb.  68,  604 

v.   Maxwell.  83   Me.   146,  653 

v.  Scott.  32    Ark.  1593, 
V.    Thayer,   I  3   Wis.    \J>).  I  12 

Manning  v.  Gasharie,  ■■-  Ind.  390. 

-9 


XXVI 


TABLE  OF  CASES. 


Rt  ferem  <  s  an  to  P 


\    Gould,  90  N.  Y.  1.76,       319 
Mannix  \ .  State,  1  15  Ind.  246,  680 

Mannsfield  v.  Allen,  85  Mo.  502,  487 
Munn\  v.  Glendinning,  15  Wis.  50,611 
Mansfield  v.  Shipp,  128  End.  55,  295, 
"  554-  75' 
Mansell  v.  Queen,  8  Ell.  &  B.  54,  r.79 
Mansur  v.  Churchman, 84  Ind.  573.  177. 

749 

v.  Streight,  103  Ind.  35S,      394,  567 

Maple  v.  Beach,  43   Ind.  51,  604 

Maples  v.  Markov.  15  Hun.  533.        2S6 

Marhury    v.    Madison.    1     Cranch. 

1  57,  14.  16,  160 

March  v.  State.  44  Tex.  64,  619 

Marcum  v.  Commonwealth  (Kv.), 

I    S.   W.  Rep.  727  792 

Marcus  v.  State,  26  Ind.  101,  231, 

292.  718 
Marie  v.  Garrison,  83   N.  V.  14.  736 

Marine    Ins.    Co.    v.     Hodgson,    6 

Cranch.  206,  515,  520 

Mark  v.  Murphy,  76  Ind.  534,  599 

Markel  v.  Evans,  47   Ind.  326,  670 

Markland  v.  Alhes,  Si  Ala.  433,         75S 

Marks  v.  Jacobs,  76  Ind.  2 16,      690,  767 

\ .  State,  101  Ind.  353,  791,  793 

v.  Trustees,  etc.,  56  Ind.  2S8,  297,  7S5 

Markson  v.  Haney,  47  Ind.  31,  298 

Marley  v.  Hornaday,  69  Ind.  106,       775 

v.  Noblett,  42  Ind.  85,  782 

Marquadt   v.    Sieherling,    121   Ind. 

•;":•  747 

Marquess  v.  La  Baw,  82  Ind.  550,      296 

Marsh  v.  Nichols.  unU.  S.  598,  119,  13 2 

v.  Richardson,  106  N.  C.  539.      690 

v.  Terrell,  63  Ind.  363,        '    7S2,  7S9 

v.  Wade.  3  Wash.  Tv.  477.  012,  639 

Marshall  v.  Beeber,  53  Ind.  83,297.  785 

v.  Davies,  7S  X.  Y.  414,  700 

v.  Gill,  77  Ind.  402,  215,   590 

v.  Lewark,  117  Ind.  377,      67S,  777 

v.   Mathers,   103   [nd.  458,  792 

v.  Minter,  43  Miss.  666,  310 

v.  State.  1   End.  72.  591 

v.  State,  2  Ind.  72,  438 

v.  State,  101  Ind.  173,  771 

v.  State,  123  Ind.  128,  255,  256,  257. 

690,   758 

Marston,  In  re,  79  Me.  25,  225 

Martin  v.  Bank,  20  Ark.  636,  180 

v.  Cauble,  72  Ind.  67,   562,  715,  748 


Martin  v.  Hunter,  1   Wheat.  304. 

217.  479. 
v.  Knouse,  2  Abb.  Pr.  390, 
v.  Martin,  <■  Blackf. 
v.  Martin,  74  Ind.  207.  187,  [93, 
370. 
v.  Martin.  1  18  Ind.  227. 
v.  Martin,  14  Ore.  105, 
v.  Matfield.  49  Cal.  42, 
V.  Martin,  7  |  Ind.  207, 

v:  Noble,  29  Ind.  216. 
v.  Nugent  (  Mo.).  15  S.  W.  Rep. 
422, 

v.  Orr,  96  Ind.  491.         122,  154, 
v.  People,  54    111.  225, 
v.  Reed,  9  Ind.  1S0, 
v.  Smith,  57  Ind.  <>2. 
v.  State,  57  Ind.  62, 
v.  St.   Louis,  etc..  Co.,  53  Ark. 
2qo.  176,  177.  178, 

'  v.  Windsor  Hotel  Co.,  70  N.  Y. 
101, 
v.  Woodruff,  2  Ind.  237, 
Martin,  etc..  Co.  v.  Wainscott,  66 

Tex.  131, 
Martindale  v.  Brown,  iS  Ind.  284, 

v.  Price,  14  Ind.  115, 
Martineau   v.  Steele,    14  Wis.  (2d 

ed.)  295, 
Martinsville,  Town  of,  v.  Shirley, 
84  Intl.  546,  520,  521, 

Marton  The  D.  R.,  91  U.  S.  365, 
Marvin  v.  Tax  lor.  27  Ind.  73, 
Marx  v.  Crosian,  17  Ore.  393, 
Ma-vie  v.  Brady,  41  La.  Ann.  553, 
Mason  v.  Burke,  120  Ind.  404, 
v.  Gibson,  13  111.  App.  463, 
v.  Mason,  102  Ind.  38,    271,  506, 
v.  Palmerton,  2  Ind.  117, 
v.  Smith.  1 1  Lea.  67, 
v.  United  States.  136  U.  S.  5S1, 
Mason,  etc..  District  v.  Griffin,  134 

111.  330, 
Masonic  Temple  Co.  v.  Common- 
wealth, 87  Ky.  349, 
Mateer  v.  Brown,  1  Cal.  221. 
Masters  v.  Beckett,  83  Ind.  595, 
v.  Templeton,  92  Ind.  447,  4SS, 


703 
78 


v.  Elden,  32  Ohio  St.  282, 
v.  Fielder,  Nj  Va.  455, 
v.  Fox,  |(>  Mo.  App.  664, 
\ .  ( ran  er,  |.o  Ind.  351, 
v.  Hall.  26  Mo.  385, 
v.  I  Iarrison.  50  I  nd.  2711. 
v.  Hazard  Powder  Co.,  93  U. 
S.  302,  3i( 


Masterson    v.    Herndon,    10   Wall. 
416,  116. 

v.  Little,  7s  Tex.  682, 
v.  Williams  (Tex),  n    So.  W. 
Rep.  531, 
265    Mather  v.  Chapman,  6  Conn.  54, 
791,  792     Matheson  v.  (J rant.  2  How.  263, 

^32     Matthews  v.  Droud,  114  Ind.  26S, 
162,  7 

v.  Morrison,  13  R.  I.  309, 
v.  Ritenour,  31  Ind.  31, 


49S 

3°4 
294, 

''s7 
626 
So 
785 
'59 
596 

44^' 
36l 
620 
101 

374 
368 

775 

5*5 

496 

266 

64 

4°3 

558 

570 
78 

59S 
640 

I27 
491 

91 
562 
301 
312 
116 

630 

126 
470 
399 

595. 
596 

139 

60 1 


74 
61 

515 
558, 

6S2 
308 

597 


TABLE  OF  CAST'S. 


lxxxvii 


[.Reft  rences 

Matthews  v.  Story,  54  Ind.  .417,         572 

Mathewsoil  v.  Stewart.  2  How.  263,    5S2 

Mathie  v.  Mcintosh,  40  Wis.  120,         13 

Mathis  v.  State,  [8  Ga.  343,  6S0 

v.  State.  94   I  ml.  562,  672 

Matlock    v.   Bank   of  Tennessee,  7 

Yerg.  90,  312 

v.  Todd,  25  Ind.  128,  215,  619 

Matson  v.  Swanson,  131   111.  255,       636 

Matter  of  Application  of  Senate,  10 

Minn.  78,  9  Col.  623,  4. 

Mattinger  v.  Lake  Shore,  etc.,  Co., 

117  Ind.  136,  196 

Mattingly  v.  Paul,  88  Ind.  95,  525,  526 
Mattson  v.  Borgeson,  24  111.  App.  79, 680 
Maxam  v.  Wood,  4  Blackf.  297,  66^ 

Maxfield  v.  Freeman,  39  Mich.  64,  83 
Maxwell  v.  Bovne,  36  Ind.  120,  624.  626, 

6S6 

v.  Campbell,  8  Ohio  St.  265,       638 

v.  Day,  45  Ind.  509,  524 

v.  Hannibal,  etc.,  Co.,  85  Mo.  95,  731 

v.  State,  S9  Ala.   150,  612 

v.  Stewart,  21  Wall.  71,  266 

May  v.  Reed,  125  Ind.  199,  216,  416 

v.  State,  14  Ohio,  461,  508 

v.  State  Bank,  9  Ind.  233,  567 

Mayer  v.  State,  4S  Ind.  122,  40S 

Mayes  v.  Goldsmith,  58  Ind.  94,         673 

May  field  v.  State,  no  Ind.  591,  53^ 

Mayhew  v.  Dunham,  13S  Mass.  5S4,   190 

Mavnard  v.  Black,  41  Ind.  310,  ^41 

Mayne  v.  Board,  123  Ind.  132,  61 

Mayo  v.  Purcell,  3  Munf.  (Va.)  243,    493 

Mayor,  etc.,  v.  Shaw,  14  Ga.  162,        334 

Mays  v.  Foster,  26  Kan.  518,  724 

v.  Fritton,  20  Wall.  414,  731 

v.  Hedges,  79  Ind.  2S8,        613 

v.  Hoover,  112  Ind.  455,       531 

v.  King,  2S  Ala.  690,  324 

Marvsville  v.  Buchanan,  3  Cal.  212,  341 

Maysville,  etc.,  Co.  v.  Punnett,  15 

B.  Monr.  47.  73 

Mazeheitz  v.  Pimentel,  S3  Cal.  4:50,  790 
Meade  v.  Bartlett,  77  Tex.  366.  '  314 
Meagher  v.  Morgan,  3  Kan.  372,  736 
Meaux  v.  Meaux,  Si  Ky.  475,  789 

Mechanics,  etc.,  Co.  v.  Nichols,  16 

N.J.  L.  410,  792 

Mechanics,  etc..   Bank  v.  Smith,  19 

Johns.  115,  737 

Mechelke  v.  Bremer,  59  Wis.  57,  699 
Midealf  v.  Commonwealth,  84  Ky. 

485>  244 

Medith  v.  Crawford,  34  Ind.  399,  6S9 
Medler  v.  Dunn,  26  Ind.  171,  579 

v.  State,  26  Ind.  171,  579,  769 

Medsker  v.  Pogue,  1  Iml.  App.  197.  510 
"leek  v.  Spracher  (Va.),  12  S.  E. 
Rep.  397,  653 


are  to  Pages.] 
Meeker  v.  Gardi  li.i.  i  Wash.  139.      5S1 
v.  Shanks,  112  Ind.  207.  712 

Meek-  \.  Leach,  91  111.  323. 
Mellish  v.  Richardson.    7    B.  &   C. 

819,  515.  520 

Melloh  v.  Demott,  79  Ind.  502,      34.  43 
Melson  v.  Dickson,  63  Ga.  529 

Meltenberger  v.  Logansport,   etc., 

Co..  to6  U    s.  2S6,  137 

Memmler  v.  Roberts,  81  Ga.  659.      306 
Memory  v.  Niepert,  33    111.    App. 

131, 
Memphis,  etc.,  Co.  v.  McCool,  83 

Ind. 392,  613 

Mendenhall   v.  Treadwav,   44   Ind. 

131,  "  769 

Menk  v.  Home,  etc.,  Co.,  76  Cal.  50,  790 
v.  Steinfort,  39  Wis.  370,  559 

Mentz,  Town  of,  v.  Cook,  10S  N. 

Y-  504.  593 

Meracle  v.  Down.  64  Wis.  323,  655 

Meranda  v.  Spurlin,  100  Ind.  380,    300, 

54S 
Mercer  v.  Corbin,  117  Ind.  450,        165, 

196,  676 

v.  Mercer,  114  Ind.  55S,  783 

v.  Patterson,  41  Ind.  440,  393 

v.  Wholl,  5  Ad.  &  El.  (N.  S.) 

447-  615 

Merchants'  Bank  v.  State  Bank,  10 

Wall.  604,  416 

Merchants',  etc.,  Co.  v.  Joesting,  89 

111.  152,  769 

Meredith  v.  Chancey,  59  Ind.  466,     156 

v.  Lackey,  14  Ind.  529,         159.  403, 

596>  6$3 

v.  Lackey,  16  Ind.  1,  403 

v.  State,  122  Ind.  514,  230. 

Mergentheim  v.  State,  107  Ind.  567.  251 

536,  579.  699 

Meridian,  etc..  Bank  v.  Brandt,  51 

Ind.  56,  599 

Meriweather  v.  Whitley,   3S  Tex. 

525,  92 

Merle  v.  Andrews,  4  Tex.  200,  82 

Mervin  v.  Universal,  etc.,  Co.,  85 

X.  V.  27S, 

Merrick  v.  State.  63  Ind.  327,     292.  718 

Merrifield  v.  Weston,  68  Ind.  70,       4*9 

Merrill  v.  Lake.  16  Ohio,  373,  430 

Merrills  v.  Adams,  Kirby,  249,  22  | 

Merritt  v.  Cobb.  17  Ind.  314,  162 

v.  Baldwin,  d  Wis.  439,  677 

v.  Pearson,  j6  Ind.  44.  294 

v.  Riihcv.  127  Ind.  400,  3^s 

v.  Wells.  iS  Ind.  171,  599,  603 

v.  White,  37   Miss.  43S,  671 

Mesa  v.  United  States,  2  Black,  721,  104 

M<  scall  v.  Tully.  91   Ind.  96,       416,  587 


lxxxviii 


TABLE  OF  CASES. 


[jReferi  < 

Messenger  v.  Kistner,  4  Binn.  97,     667, 

G72 
Meserve  v.  Clark,  nq  111.  5S0,  317 

Messick  v.  Midland  R.  R.  Co.,  12S 

Ind.  Si,  507,  609 

Meyer  v.  Fiegel,  <;S  How.  Pr.  424,    407, 

793 
v.  Lane.  40  Kan.  491,  636 

v.  Lewis.  13  Mo.  App.  417,  656 

v.  State,  19  Ark.  156,  528 

v.  State.  125  Ind.  m,  ?,:/>,  520 


Stewart.  |S  Md.  423, 
v.  Yesser,  32  End.  294, 
Metcalf  v.  Watertown,  12S  U.  S. 

.  Town  of,  v.  Cook,  10S  N.  Y. 

-""!■ 
Metzler  v.  James,  12  Col.  322, 

v.  Metzler.  99  Ind.  384, 
Miami,  etc.,  Co.  v.  Baity,  37  Ohio 
St.  104, 
v.  Wesler,  47  Ind.  65,  528,531 

Midberry  v.  Collins,  9  Johns.  345,      441 
Middletown    v.   Quigley,   7    Halst. 

(N.J.)  35*. 

Midland  Rv.  Co.  v.  Dickason,  29  X. 

Rep.  775. 

Midland,  etc..  v.  McCartney,  1  Neb, 

398, 

Midland  R.  W.  Co.  v.   Wilcox,  ill 

Ind.  561,  3l6»34? 

Michel!  v.  Stinson.  So  Ind.  324, 
Michie  v.  Michie,  17  Gratt.  109, 
Michigan,   etc.,  Co.  v.   Bivens, 
Ind.  263. 
v.  Doherty,  77  Mich.  359, 
v.  McDonough,  21  Mich.  165, 
v.  Northern,  etc.,  Co.,  3  Ind.  239, 
Micklev  v.  Tomlinson,  79  la,  3S3, 


224 
767 

4.1S 


734 
412 

S36 

539 


1  I 


67. 


'3 


16S 
103 

693 
120 

5S7 
86 

i-3 
Milburn  Wagon  Co.  v.  Kennedy,  75 

Tex.  212,  '     576 

Miles  v.  Buchanan,  36  Ind.  490,  2S4,  294, 

297»3«>5  5"»  63s 

v.  Douglass.  34  Conn.  393,  571 

v.  Edsall,  7  Mont.  185,    '  581 

v.  Jennings,  6  Mo.  App.  589,  159 

1 .  >omis,  75  N.  Y.  7:1 1 

v.  Stevens,  3  Pa.  St.  21,  56S 

v.  Yanhorn,  17  Ind.  215,       524,  76] 

v.  Wikel,  74  la.  712,  556 

v.  Wingate,  6  Ind.  45S,  704 

Millar  \.  Farrar,  2  Black!'.  219.  ^2 

\.  McAllister,  59  Ind.  491,  320 

Miller  v.  Adamson,  45  Minn.  99,  781 

\ .  Arnold,  65  Ind.  |  452 

v.  Baker,  20  Pick.  2  17,  750 

v.  Billingsley,  41  Ind.  4S9,  ^97 

v.  Bottorf,  6  Blackf.  30,  2S4 

v.  Burton,  121   I  ml.  22  |,  2S4 

v.  Camp  1 12,  93,  109 


;•<■  /<>  Pages.] 

Miller  v.  Carmichael, 98  Ind.  236, 

223,  -o. 
v.  Deaver,  30  Ind.  371, 
v.  Evansville  National  Bank, 99 

Ind.  272.  52, 

v   Graham.  17  Ohio  St.  1, 
v.  Hardin.  04  Mo.  545. 
v.  1  lays.  20  Ind.  451, 
v.  Holding,  5  Houst.  f  Del.)  494, 
v    Hower.  2  Raw  le.  53, 
v.  Indianapolis,  123  Ind.  196, 
v.  Kolh,  47  Ind.  220, 
v.  Lively,  1  Ind.  App.  6, 
v.  Louisville,  etc.,  Co.,  12S  Ind. 

97* 


McKenzie,  10  Wall.  5S2,   116, 
v.  Montgomery.  78  N.  Y.  2S2, 
v.  Morgan.   143  Mass.  25. 

v.  Noble,  86  Ind.  ^27, 

v.  O'Reilly,  S4  Ind.  16S,      320, 

3--- 
v.  Perry.  38  la.  303, 
v.  Porter.  71    Ind.  521, 
v.  Powers.  iS  Ind.  263, 
v.  Royce,  60  Ind.  1S9,  179, 

v.  Seligman.  58  Ind.  460,       19S, 
v.  Shackleford,  4  Dana,  264, 
v.  Shall,  67  Barb.  440. 
v.  Shields.  124  Ind.  166, 
v.  Shriner,  S7  Ind.  141,  170,  171. 
v.  State,  S  Ind.  325,  63,  232,  444, 
v.  State,  61  Ind.  503, 
v.  State,  12  Wall.  150, 
v.  Thomas.  71  Cal.  406, 
v.  Yoss.  40  Ind.  307,  092. 

v.  Wade.  87  Cal.  410, 
v.   White    River    School    Tp., 
101  Ind.  503, 
Millani  v.  Togrini,  19  Nev.  133, 
Millard  v.  Board.  116  111.  23, 
Millerd  v.  Thorn.  56  N.  Y'.  402, 
Millett,  Ex  parte.  37  Mo.  App.  76, 
Milligan  v.  Poole,  ^q  Ind.  64, 

v.  State,  97  Ind.'  355,  SS, 

Millikan  v.  Patterson.  91  Ind.  515. 
v.  State,  70  Ind.  2S3,     247,36s, 


222, 

349 

704 

•Is" 

61 

4S6 

378 

;-"- 

7 
215 

■7o 
687 

653 

137 
73 l 

l82 


Milliken  v.  Ham,  36  Ind.  166, 
Millikin  v.  Houghton,  75  Cal.  539, 

v.  Osborne,  12  Ind.  4S0, 
Milner,  Ex  parte,  6  Eng.   L.  &  Eq. 

37i- 
Milner  v.  Meek,  95  U.  S.  252, 
Million  v.  Board,  09  Ind.  5, 
Millior  v.  Board,  89  Ind.  105, 
Mills  v.  Brown,  16  Pet.  425.  62 

Mills  v.  Buchanan,  36  I  ml.  490, 

v.  Conner.  1  Blackf.  2. 

v.  IIoaur.  7  Paige.  iS, 

v.  Miller.  2  Neb.  299, 


3-4 
523 
644 
54'> 
192 
201 
695 
96 
10S 
182 

54' 
268 
3SS 
122 
773 
265 

624 

597 

58 

6l  q 

SS 

599 
290 
790 

374. 

702 

297 

665 

440 

137 
670 
2S4 

134 
763 
332 

13- 

75 


TABLE  OF  CASES. 


I  x  x  x  i  x 


[References  a 

Mills  v.  Rico.  3  Neb.  ;<>.  634 

v.  Simmonds,  io  End. 464,    755,769 
v.  State.  52   Ind.  [87,  231,  ;S; 

v.  Thurbv.    1  1    1  low.   Pr.   I  [4,  733 

v.  Win  tor,  94  Ind.  329,   375,610,699 


MilK, ip  \ .  Stanley,  50  Ala.  319, 
Milwaukee,  etc.,  Co.   v.   Pabst,  64 

Wis.  244, 

Mimms  v.  State,  [6  Ohio  St.  221, 

Minor  v.  Louman,  66  Mich.  530, 

v.  Rogers,  65  Mich,  22^, 

v.  Vedder,  66  Mich.  97. 

Mining  Co.  v.  Taylor,  100  U.  S.  37, 


I31 

96 
578 

339 
57') 
509, 

573 

58 

488 


616 

"5 

545 

549 

597 

566 

446 
420 
712 

202 
716 

33  2 
192 

63S 
546 


Minor  v.  Happersett,  21   Wall.  162, 
Minor  v.  Hill.  58  Ind.  176, 
Minneapolis  v.  Wilkin.  30  Minn.  140,   61 
Minnesota,  etc.,   Co.  v.  Doran,   17 

Minn.  [88, 

v.  St.  Paul  Co..  2  Wall.  609, 
Minot  v.  Mitchell,  30  Ind.  228, 
Minton  v.  Underwood,  etc.,  Co.,  79 

Wis.  646, 
Minturn    v.    Farmers,   etc.,   Co.,   3 

Sold.  498, 

Mires  v.  Alley,  51  Ind.  507, 
Mitchell  v.  American  Ins.  Co.,  51 
Ind.  396, 

v.  Bunch.  2  Paige  Ch.  606, 
v.  Colglazier,  106  Ind.  464, 
v.  Dibble.  14  Ind.  526, 
v.  Friedlev.  ijC>  Ind.  545,      6^3, 
v.  Gregory, 94  Ind.  305,  212,331 
v.  Lincoln.  78  Ind.  531,         1S1, 
v.  McCabe,  io  Ohio,  405, 
v.  Monette,  37  Ala.  49, 
v.  Overman,  103  U.  S.  62,    17S,  650 
V.  Robinson,  So  Ind.  2S1,  626 

v.  Stinson.So  Ind.  324.  159,  161,  511 
v.  Tomlinson.  91  Ind.  167,  537,  678 
v.  United  States.  9  Pet.  711,  456 
v.  Wiles,  59  Ind.  304,  435 

Mitcheson  v.  Foster.  3*  Metcf.  (Kv.) 

3-4* 
Mitts  v.  McMorran,  85  Mich.  94, 
Missouri  v.  First  National  Bank,  74 

111.  217, 
Missouri,  etc.,  Co.  v.  Chicago,  etc., 
Co.,  132  U.  S.  191. 

v.  Hoi  ley,  30  Kan.  405* 
v.  Lamothe,  76  Tex.  219, 
v.  Munkers,  11  Kan.  223, 
v.  Palmer.  19  Kan.  471, 
v.  Vandeventer,  2<>  Neb.  222. 
Missouri   Pacific  Rv.  Co.  v.  Hays, 
15  Neb.  224. 

v.  Johnson.  72  Tex.  95, 
V.  Schocnnen.  37  Mo.  App.612, 
Missouri    River  Tel.    Co.    v.  First 
Nat.  Bank,  74  111.  217.  53; 


20 

659 


75° 

sSo 
6S2 

529 
201 

39i 

774 
539 

547 


re  to  Pages.] 

Mister  \ .  Corrigan,  1 7  Mo.  App.510, 
Mizer  v.  Bristol,  }o  Nob.  138, 
Mix  v.  People,  86  111.  329, 
v.  People,  1  22  111.  641, 
Mobile,  etc.,  Co.  v.  lurev,  111  U.S. 

584, 

v.  Ladd  (Ala.).  9  So.  Rep.  169, 

v.  McCarthy,  56  l'a.  St.  359, 
Mobley  v.  Slonaker,  48  Ind.  256, 

v.  State.  83  Ind.  92,  391, 

Moo  v.  Moe.  39  Wis.  30S, 
Moffatt  V.  Fisher.  47  la.  473. 
MofHtt  v.  Wilson,  44  Ind.  470, 

v.  Medsker    Draining    Co.,   4S 
Ind.  107, 
Mogan  v.  Thompson,  13  Ore.  230, 
Mohnev  v.  Redbank  Tp.  (Pa.),  15 

Atl.  Rep.  891, 
Mohun's  Case.  6  Mod.  59, 
Molihan  v.  State.  30  Ind.  266, 
Moll  v.  Benckler,  28  Wis.  611, 
Moller  v.  Tuska,  87  N.  V.  166, 
Monnett  v.  Hemphill,  110  Ind.  299, 

Montana   Rv.  Co.  v.  Warren,    137 

U.  S.  348," 
Monroe  v.  Adams   Ex.  Co..  65  Ind. 
60, 

v.  Paddock,  75  Ind.  422, 
v.  Snow,  ^^  111.  App.  230. 
Montgomery  v.  Gorrell,  49  Ind.  230. 


[60 

'•'5 

489 


28 

4'.> 

450 
45 

760 

o2 

178 
25O 

7s" 
589 
125, 

494 

62  S 

163 

282 

7'- 


v.  Leavenworth.  2  Cal.  57, 

v.  Swindler.  ^2  Ohio  St.  224. 

v.  Wasem,  1  [6  Ind.  343. 
Montgomery  Co.    v.   Auckley,   103 

Mo.  492,' 
Montmorency,  etc.,  Co.  v.  Rock.  41 
Ind.  2(<],  687,  712. 

Montsessonv.  Randle,  Buller  N.  P. 

328, 
Moody  v.  Fleming,  4  Ga.  115, 

v.  Pomeroy,  1  Denio,  115, 

v.  Rowell,  17  Pick.  490, 

v.  Sewall.  14  Me.  295, 

v.  State,  S|  Ind.  |  \ 

v.  Vreeland,  7  Wend.  55,     2<  7. 
Moon  v.Jennings,  119  Ind.  130. 
Moonev  v.  Hough,  84  Ala.  So, 

v.  Kinsey, 90 Ind. 33,     570.  761, 

v.  Maas.  22  la.  3S0, 
Moore,  Estate  of,  6S  Cal.  394, 
Moore  v.  Alerton  (Tex.).  15  S.  W. 

Rep.  70. 

v.  American,  etc.,  Co.,  60  Hun. 
582, 

\ .  Barnett,  17  Ind.  349, 

v.  Boner,  7  Bush.  : 

v.  Boyd,  95  Ind.  134. 

v.  Brow  n.  Si  Ga.  10.  455. 


11 1 
615 

147 

650 

7  1^ 
622 

619 

557 
602 
681 

511 
7s" 
;;<> 

7  93 


490 

7s 


xc 


TABLE  OF  cASES. 


A\  i,  rences  are  /<>  Pages.) 


Moore  v.  Damon,  \  Mo.  App.  in.  30C 


Ellis,  iS  Mich.  .. 
\ .  Flo_j  d,  1  ( )n  .  260, 
v.  ( ramgee  L.  R.,  25  Q^  T>. 
v.  Gentry,  25  S.  C.  .3.34. 
v.  Gilbert,  46  la.  .-• 
v.  1  larland,  107  [nd.  474, 
v.  Held,  73  la.  53S, 
v.  1  [enry,  [S  Mo.  App.  35, 
\ .  Jordan,  65  Tex.  395. 
v.  Lew  i-.  76  Mich.  300, 
v.  L\  mi  79  Ind.  299, 
v.  McDonald.  68  Md.  321. 
\ .  Mc(  ruire,  26  Ala.  401. 
v.  Philadelphia    Bank,   5    ! 
R.  41. 

\.  Read.  1  Blackf.  177.  2<i2. 
v.  Robbins,  iS  Wall.  5SS, 
\ .  Ross,  11  X.  II.  547, 
\ .  Sargeant,  1 1 2  Ind.  48  ■, 

v.  Shields.  121  Ind.  267, 


La.  Ann. 


u 


v.  Seaton,  31  Ind.  1 1. 
v.  State,  '>3  Ga.  165, 
% .  State,  65  Ind.  2  [3, 
v.  State,  72   Ind.  358, 
v.  State.  1 14  Ind.  414. 
Moores  v.  McConnell, 

84, 

v.  National    Bank,    104 

625, 
Moormen  v.  Shockney,  95  Ind.  SS, 

v.  Wood.   1  17  Ind.  144. 
Moral    School  Tp.   v.    Harrison.  -\ 

Ind.  93, 
Mordecai  v.  Lindsay,  i<)  How.  199. 
Mordhorst  v.  Nebraska  Tel.  Co..  2S 

Neb.  610. 

Morehouse  v.  Heath.  91)  Ind.  509, 
Morford  v.  White.  53  Ind.  547. 

\ .  Woodworth,  7  Ind.  83, 
Morgan,  Ex  parti.',  114  L'.  S.  174, 


61,  91 

1  jo.  3:50 

-Ml-  630 
601  • 

675 

271 
122 
191 
461 
123 

571 

619 
116 

712,  718 

499 
663 

5z6>  $33- 

639 
658,  659, 

691 

52 

17S 

162,  762 

437 
791 

4S3 


614 

28S 

;s7 

562 

47S 

699 

535 

5S9 
5/S 
435- 
436 
79- 
643 
775 


Morgan  v.  Bell,  41  Kan.  345. 
v.  Durfee,  69  Mo.  469, 
v.  Haj's,  91  Ind.  132.  17S, 

v.  Incorporated,    etc.,    Co.,    64 
Ind.  213, 

v.  Keenan,  27  S.  C.  248, 

v.  Lake  Shore,  etc.,  Co.  (Ind.), 

E.  Rep.  548, 
\ .  Reji  nolds,  1   Mont.  163, 

\  .  State.   12   Ind.  44S, 

v,  State.  1  5  [nd.  2  15. 

v.  Stat..  51   [nd.  [93,     510.  555, 
Mori  arte  v.  McDevitt,  46  Minn.  136,  718 
Morisey  v.  Swinson,  104  V  ( ' 

68" 
Morklar  v.  Lewi-.  40  Ind.  1,  7S4 


5- 
68 


59i 
54 
677 
541 
613 


Morley  v.  Liverpool    etc.,   Co.,  s^ 

Mich.  2  to. 
Morningstar   v.    Cunningham,    no 

Ind.  579, 

v.  Musser  (Ind.),28N.  E.  Rep. 

11 19.  [59,  505. 

Morrill  y.  Richcy.  18  N.  I  I 

Morris,  Ex  parte.  <>  Wall.  605, 

Morris  v.  Angle,  42  Cal.  236, 
v.  Beall,  '  --  Ala.  ; 
v.  Buck(  ■  Co.,  7s  Ind. 

86, 

v.  Gilmer.  129  U.  S.  315, 

v.  Graves,  2  [nd.  354,  514, 

v.  Lachman,  68  Cal.  109, 

\ .  Morris,  119  Ind.  341, 

v.  Ogle,  56  (  ia.  592. 

v.  Piatt,  32  Conn.  75, 

v.  Rexford,  18  N.  Y.  552, 

v.  Runnels.  12  Tex.  176, 

v.  State.  1  Blackf.  37.  231, 

v.  State.  7  Blackf.  607, 

v.  State.  94  Ind.  565,  535, 

v.  Stern.  80  Ind.  227. 

v.  Thomas.  17  111.  1 12. 

v.  Wells.  54  Hun.  634, 

Morrison  v.  Hedenberg  (111.),  27  N. 
E.  Rep.  400, 
v.  Jacoby,  114  Ind.  S4,  265, 

v.  Judge.  14  Ala.  1S2, 
v.  Lehew,  17  Mo.  App.  633, 
v.  Morrison,  16  Hun.  507, 
v.  State.  40  Ark.  44S, 
v.  State,  76  Ind.  335.      251,  623, 

Morris-ev  v.  People.  I  1   Mich.  327, 

Morrow  v.  Comm'rs,  21   Kan.  4S4, 
v.  State, 48  Ind.  432,  256, 

v.  Sullender,  4  Neb.  374, 
v.  Walker,  10  Ark.  569,         224, 
v.  Weed,  4  Ia.  77.  147,284, 

Morse  \.  Morse.  25  Ind.  150,        554, 
v.  Stockman,  65  Wis.  36, 
v.  Woodworth    (Mass.),  27  N. 
E.  Rep.  1010, 

Mortimer  v.  Nash,  17  Abb.  Pr.  229, 
n., 

Moses  v.Julian,  45  N.  II.  52, 
\.  Macferlane,  2  Burr.  1005, 
v.  Risdon,  46  la.  251. 
v.  Vroman,  5  Wis.  1  17. 
v.  Wooster,  115  U.  S.  285, 

Moslier  v.  State.  1  |   Ind.  201. 

Mosier  v.  Duckworth  (Ind.),  30, 

\  .  Stoll.  1  19  Ind.  244.     548  ,622, 

Mo--  \  .  State.  101   Ind.  321, 

v.  Witness  Printing  Co.,  64  Ind. 

l-'v 

Moulder  v.  KcmplT.  115  Ind.  459.  S. 
Moulton  \.  Baer,  7^  ( ra.  2 15, 
Moultrie  v.  Dixon.  26  S.  C.  290, 


7S7 

597 

510 

546 

497 

16S 

736 


39- 
5J7 
57- 
692 

677 

66: 

S§7 
611 

7S3 
^-7 
572 
566 
59o 
655 

655 
364 
555 
770 
96 

3-4 
740 

763 
625 

775 

75i 

-^5 
672 

580 
68 


''47 
10 

635 

791 
141 

256 

33 

691 

61 

<M3 
55.3 
630 

44 


TABLE  OF  CASKS. 


Xi.  I 


[References  a 

Mount  v.  Slack.  39  N.  I.  Eq.  23O,       224,] 

v.  Van  Ness,  34  N.J.  Eq.  523,     225 
Mountjoy  v.  State,  78  Ind.  172,  232 

Mover  v.  Brand.  [02  End   301,     505,603, 

606,  607,  60S 
v.  Strahl,  10  Wis.  83,  93 

v.  Swygart,  21  111.  App.497,    33,  44 
Movie  v.  Landers,  78  Cal.  99,  122 

Mudget  v.  Kent.  tS  Me. 349,  232 

Mulcahey  v.  Givens,  115  Ind.  2S0,  61 
Muldoon  v.Blackwell.S^  N.  Y.646,  414 
Muler  v.  Evansville   Nat.   Bank,  99 

Ind.  272.  S32 

Mulhern  v.  Press,  etc.,  Co.,  53  N.J. 

L.  1  ^o,  633 

Mulhoilin  v.  Ward,  7  Ind.  646.  536 

Mull  v.  McKnight,  67  Ind.  525,  159,  161, 

164,  '17--  334.  46- 

Mullany  v.  First  Nat.  Bank,  89  Ind. 

424,  '  7^5 

Mullary  v.  Caskaden,  Minor  (Ala.), 

20.    '  1S3,   1S4 

Mullen  v.  Morris,  2  Pa.  St.  85,  619 

v.  State,  34  Ind.  540.  4 

Mullendore  v.  Scott,  45  Ind.  113,        404 

v.  Silvers,  34  Ind.  9S,  736 

Mullikin  v.  Bloomington,  72  Ind. 161,  285 

Mullin  v.  Atherton.  <>i  \.  II.  20,  494,  496 

Mullinix  v.  State,  10  Ind.  5,        232,  254 

Mumford  \.   Thomas,  10  Ind.  167,      628 

v.  Wordwell,  (>  Wall.  423,  695 

Munly  v.  State,  7  Blackf.  593,  527 

Muncey  v.  Joest,  74  Ind.  409,     147,  2S4, 

2  86 

Munday  v.  Collier,  52  Ark.  126,         639 

Munson  v.  Blake.  101  Ind.  7S,  123 

v.  Lock,  48  Ind.  116,  26S 

Murdock  v.  Brooks,  3S  Cal.  596,         323 

v.  Cincinnati,  39  Fed.  Rep. 891,   121 

v.  Clarke,  90  Cal.  427.  624 

v.  Cox,  ilS  Ind.  266,        [9,  395,   475 

v.  District  of  Columbia,  23  Ct. 

of  CI.  41.  9s 

v.  Martin.  132  Pa.  St.  86,  76 

v.  Memphis,  20  Wail.  590,  92 

Murphy  v.  Clayton,  51  Ind.  147.        675 

v.  Common  wealth.  2  }  (iratt.960,  674 

v.    Consolidated,    etc..   Co..    }2 

111.  612,  315 

v.  Kjng,  6  Mon.  30,  65 

v.  Lambert,  59  tnd.  477.  636 

v.  Ross,  2  Wash.  327,  44" 

v.  Steele,  51    Ind.  81,  324 

v.  State,  97  Ind.  579.  250 

v.  Teter,  56  Ind.  545,  736 

v.  Tilly.  11   Ind.  511.      [62,601,   769 

v.  United  States,  104  U.S.  404,   127 

Murphrey  v.  Wood,  2  Jones  (  N.  C), 


re  to  Pages.] 
Murray  v.  Abbott,  61   Wi 
v.  Berdell,  98  N.  "V 
v.  Charleston,  96  U.  s.  432. 
v.  Ebright,  50  Ind.  y<2.        603,  7  2 
v.  Fry,  6  Ind.  371, 
v.  Phillips,  59  1  nd.  56, 

ribner,  70  Wis.  22S,  1  7 

v.  State,  26  Ind.  [41,  250 

v.  Usher,  117  N.  Y.  542,  745 

V.  Williamson.  79  Ind.  2S7.  379.  4)'' 

Murrell  v.  .Smith.  51  Ala.  301,  409 

Murrill  v.  Murrill,  90  N.  C.  120         41/) 

Murrv  v.  Burris,  6  Dak.  170,  $j2 

Muscoe  V.  Commonwealth,  S6  Va. 

443.  _  253 

Musgrove  v.  Glassgow,  3  Ind.  31,      327 

Musselman's  Appeal,  101  Pa.  St.  165,  13 

Musselman  v.  Cravens,  47  Ind.  1, 

v.  Kent.  33  Ind.  452. 

v.  Musselman,  44  Ind.  106,   521,  545, 

7S6 

v.  Pratt,  44  Ind.  126,  534,  571 

v.  Wise,  84  Ind.  24S,  403.   572 

Musser  v.  Hawood,  23  Mo.  App.  495 

Mussina  v.  Cavazos,  20  How.  280,      92, 

116.   137 
Mutual  Life  Ins.  Co.  v.  Snyder,  95 

U.  S.  393,  643,  C62 

Mutual,  etc.,  Co.  v.  Cannon.  48  Ind. 

264,  5S0 

Myer  v.  Moon,  45  Kan.  580,  634 

Myers  v.  Conway.  62  Ind.  474,  766 

v.  Crow,  113'  N.  Y.  608,  413 

v.  Duabenbiss,  S4  Cal.  1, 
v.  Field,  37  Mo.  434, 
v.  Kendrick,  13  la.  599,  483 

v.  Lawyer,  99  Ind.  237,  1^7 

v.  McDonald,  68  Cal.  102.  499 

v.  Mitchell  (S.  Dak.),  46  N.W. 
Rep.  246, 

v.  Moore.  2S  N.  E.  Rep.  724.        521 
v.  Murphy,  60  Ind.  282,        62  5 
v.  State.  1 15  Ind.  554.  520 

Mvgatt  v.  Ingham,  Wright  (Ohio), 

V7". 
Myrick  v.  Meritt,  22  Fla.  335,  674 


N 


L.  6 


"5 


N.  P.  Terminal  Co.  v.  Lowenberg, 

n  Ore.  286, 
Naffzieger  v.  Reed.  98  Mo.  s7- 
Nalker  v.  State.  102   Ind.  502, 
Nalley  v.  State.  2s  Tex.    \pp.  387, 
Nance  v.  Metcalfe,  1.)  Mo.  Ap.  1S3, 
Nash  v.  Caywood,  39  Ind.  457, 
Nashua  Savings  Bank  v.  Lovejoy, 

1   N.  Dak.   211. 
National    Bank   v.  Dunn,    106    Ind, 

110,  271. 


517 
622 

4M 
687 

734 


X  C 1 1 


TABLE  OF  CASES. 


[  A\  /.  rences  a 
National  Bankv.  Farvis,  26  VV.  Va. 

-    7S5-  7i 

v.  Omaha,  96  I  .  S.  737,  2oS 

mal  Banking,  etc.,Co.v.  Knaup, 

55  Mo-  »S4i  (ll 
National,  etc.,  Bank  v.  McConnell 

Ala.,,  9  So.  Rep.  149.  544 
National  City  Bank   v.  New  York, 

etc.,  Exchange,  97  V  Y.  645,  463 

mI  Benefit  Asso.  v.  Grauman, 

107  [nd.  2SS,  67S 

Nations  v.  Johnson,   24  How.   195,  134 

Nave  v.  First  Nat.  Bank,$7  [nd.204,  146 

v.  Flack.  90  End.  205.     535,  577.  700 

v.  1  ladlcy,  7  1  [nd.  155,  604 

v.  Nave.  12  Ind.  1,  777 

v.  Wilson,  1,7,  Ind.  294,  563 

Nay  v.  Byers,  13  [nd.  412,  197 

Naugle  v.  State.  101  [nd.  2S4,  568 

Naylor  v.  Moody,  2  Blackf.  247,  321 

v.  Sidener,  to6  Ind.  179,  81 

Neagle,  In  re  4  Sawy.  2^2,  7 

Neal  v.  Field,  68  Ga.  534,  127 

v.  Mills,  5  Blackf.  208,  71s 

v.  State.  49  Ind.  51,  604 

Nealis  \.  Dicks.  -2  Ind.  374,  6 

Nealley  v. Greenough, 25  N.  II. 325,  697 

Nearing  v.  licit.  5  Hill,  291,  617 

Nebraska,  etc.,   Co.   v.   Maxon,    2: 

\.  !).  22  |. 

Needham  v.  Webb,  20  Ind.  213, 
Needless  v.  Burk,  0  Mo.  474, 
Ned  v    City   of  Toledo,  5   Ohio  C 

C.  203, 
Neil'  \ .  Clute,  12  Barb.  406, 

v.  Reed,  98  Ind.  341.     217,  300,  539, 

630 
Neidefer  v.  Chastain,  71  Ind.  $<>t,.     ijSS, 

'635 
Neilson  v.  Chicago,etc.,Co.,  5S  Wis. 
5.6,  ' 

\ .  C  ommercial  Mutual  Ins. Co., 
3  Duer,  455, 
Neigler  v.  Harris,  115  Ind.  560, 
Ncllis  v.  Lathrop,  22  Wend.  121, 
Nelson  v.  Brov\  n.  20  Ind.  74, 


669 

403 
491 

515 
401 


539 


V.  Da\  is,  35  Ind.  47  |, 

v.  State,  2  Swan.  237. 

v.  Tenney,  113  N.  Y.  616, 

\.  Warren    (Ala.;,  8  So.    Rep. 


190 

723 
56 

599 
599 
538 
449 


4'3- 


\ .  Welch,  1  1  ^  Ind.  270,         6 

v.  Wilson,  75  la.  710, 
Neptune  v.  Taylor,  108  Ind.  459, 
Nesbil  v.  Miller,  125  Ind.  to6, 
New  v.  New.   1  27   Ind.  576, 

V.  Walker,   10S  1  ml.  365,       60 
New    Albany,  etc..  Co.  v.  Callow.  N 
Ind.  471,  [96,  62S 

v.  Combs,  13  Ind.  490,         378,  (i^2 


7\<> 
7  So 

402 

558 

736 

554 


re  to  Pages.] 

New  Albany,  etc..  Co.  v.  Day,   117 

Ind.  337.  "  391 

v.  I  lull.  19  Ind.  444.  (.20 

\  .  Welsh,  9  Ind.  470,  2S|,   671 

New  Albany  v.  White,  100  Ind.  206.  2S8, 

-97 
New  Albany,  City  ol,  v.McCulloch, 

127  Ind.  500,  579,  678,  7S7 

New  England  Iron  Co.  v.  New  York 

Loan  Co.,  55  How.  Pr.  351,  696 

New  lira  Lite  Asso.  v.  Weigle,  12S 

Pa.  St.  577,  5  17 

New   Haven  v.  Whitney,  36  Conn. 

373-  "  30 

New  Home  Lite  Asso.  v.  Hagler, 23 

111.  A  pp.  4,7.  639 

New    Orleans    v.   .scalzo,    41     La. 

Ann.  1 141,  444 

New  Orleans  Ins.  Co.  v.  Albro.Co., 

|I2    I.  S.  506,  212,316 

New  Orleans,  etc.,  Co.  v.  Bosworth, 
8  La.  Ann.  So,  140 

v.  Crescent  City   Co.,  33   La. 
Ann.  934,  126 

New  Orleans,  City  of,  v.  Whitney, 

13S  U.  S.  595,  4S9 

New  York,  etc.,  Co.,  Matter  of,  35 
Hun.  575,  647 

v.  Auer,  106  Ind.  219,  59S 

v.  Doane,  105  Ind.  92,  9S,  779 

v.  Fifth    Nat.    Hank,  liS    U.    S. 
60S,  51 

v.  Fifth   Nat.  Bank,  135   U.  S. 

43^>  639 

v.  Gallagher,  79  Tex.  6S5,   5S1,  655 

v.  Schuyler,  17  N.  Y.  592,  732 

v.  Wilson,  S  Ret.  291,  756 

New   York   Elevated  R.  R.  Co.  v. 

Fifth  Nat.  Bank,  118  U.  S.  60S,         78 
Newark,  etc.,  Co.  v.  Perry  Co.,  30 

Ohio  St.   120,  189 

Newberry  v.  Furnival,  50  N.Y.63S,  028 

Newby  v.  Myers,  44  Kan.  477,  724 

v.  Warren,  24  Ind.  161,  747 

Newcomb  v.  llorton,  iS  Wis.  566,     596 

v.  Newcomb,  13  Bush.  ^44,  072 

v.  White  (N.  ML),  23  Rac.  Rep. 

671,  676 

New  come  v.  Wiggins,  7S  Ind.  306,    282 

Newcomer    v.    Hutchins,    96     Ind. 

119,  36S,  569,/uo,  678 

Newell  v.  Avers,  ^2  Me.  334,  579 

Newell  v.  Catling,  7  Ind.  147.  64.87.  755 

Newhouse  v.  Miller,  35  Ind.  463,  393,  401 

Newkirk  v.  State.  27  Ind.  1,  619 

Newman,  Ex  parte,  14  Wall.  152,      439 

Newman  v.  Hammond,  46  Ind.  119,  069 

v.  Riser,  128  Ind.  250,  452 

v.  Riser    (Ind.),  26   N.  F.  Rep. 

1006,  126,228.350,352 


TABLE  OF  CASES. 


xcm 


[  References 
Newman  v.  Manning,  89  Ind.  422.  734 
Newton  v.  Newton,  12  lnd.  5-7,        <«><> 

\.  Newton,  46  Minn.  33,       546,655 

\  ,  Tyner,   1  28  I  ml.  466, 

v.  Whitney,  77  Wis.  5 15 
Niklaus  v.  Roach,  3  Ind.  78, 
Nichol  v.  Henry,  89  Ind.  54, 

v.  Thomas,  53  Ind.  42, 


Nichols  v.  Cito,  132  111.  91, 
v.  Cornelius,  7  Ind    oil, 
v.  Glover,  4  1  Ind. 24, 
v.  Nichols,  96  Ind.  433, 
v    Mate,  65  Ind.  512, 

v.  State,  127  Ind.  406, 


743 

7^7 

603 

333 
162,172. 

5-5-  759 

44 

88 

4S0 

282 

163,  5S0,  619, 

766,  786 

247-  255i 
40S,  672 

657 

is5-   217 


v.  White,  85  N.  V.  531, 
Nicholson  v.  Stephens,  47  Ind 
Nickless  v.  Pearson,  126  Ind.  477,     491, 

68S 
Nicodemus  v.  Simons,  121  Ind.  564,718 
Nietert  v.  Trent  man,  104  Ind  390,  2S2 
Nill  v  Comparet,  16  Ind  107,  '  462 
Nitchie  v.  Earle,  117  Ind.  270,  12S,  54S, 

610,  712 
Niven  v.  Burke,  S2  Ind.  455,  744 

Nixon  v.  Beard,  111  Ind,  137,      535,562 

v.  Campbell,  106  Ind.  47,     50S,  554, 

562 

v.  Hammond,  12  Cush.  2S5,  232 
Noakes  v.  Monv,  30  Ind.  103,-  624,  6S6 
Noble  v.' Blount,  77  Mo   235,  54^ 

v.  Bourke,  44  Mich   193,  34S 

v.  Dickson,  4S  Ind.  171,  7S4 

v.  Enos,  19  Ind    72,  694 

v.  Murphy,  27  Ind.  502,        101,  467 
Noblesville,  etc.,  Co.  v.  Cause,  76 
Ind.  142, 

v.  Leehr,  124  Ind.  79, 

v.  Titer,  1  Ind.  App.  322, 

v.  Vestal,  11S  Ind.  So, 
Noe  v.  State,  92  Ind.  92, 
Noll  v   Smith,  6S  Ind.  iSS, 
Nonesuch,  The,  9  Wall    504, 
Noon  v.  Lanahan,  55  Ind   2O.2, 
Noonan  v.  Ilsley,  22  Wis.  27, 
Norburv  v.  Meade,  2  Bligh.  261, 
Nord  v.  Martz,  56  Ind.  531,   . 
Norden  v.  Jones,  33  Wis.  600, 
Nordvke,  etc.,  Co.  v.  Dickson,  76 
Ind.  iSS, 

v.  Van  Sant,  99  Ind.  1S8, 
Norfolk  Southern  R.  Co.  v.  Ely,  95 

N.  C.  77, 
Norman  v.  \\  inch.  65  la.  263, 
Norris  v.  Dodge,  23  Ind.  190, 

v.  State.  95  Ind.  73, 
North  v.  State.  107  Ind.  356, 


535 
70S 

759 
690 

530 
32S 

x& 
6S3 

658 

17 

i79 

5«7 

294 
640 


iirr  tn  Pages.\ 
North,  etc.,  Co.  x.  Crayton, 

499. 
North  American  Ins.  Co.  v.  Fore 

heimer,  86  Ala.  541, 
North  Vernon,  City  of,  v.  Voegler, 

103  Ind. 314, 
Northam  v.  Gordon,  23  Cal.  2;;. 
Northcutt  v.  Buckles,  60  Ind. 

64, 
Northern  Ind.  R.  Co.  v.  Michigan 

Central  R.  Co.,  2  Ind.  670,     ^2, 

Northern  Pac,  etc.,  Co.  v.  Holmes, 

3  Wash.  Ty.  543, 
Northern  R.  R   Co.  v.  Herbert,  nC> 

U.  S.  642, 
Northwestern,  etc.,  Co.  v.  Blanken- 

ship,  94  Ind.  535, 

v.  Hazelett,  105  Ind.  217.    251, 

374-  44''- 
v.  Landes,  6  Minn.  564, 
Northwestern    Mutual,  etc.,   Co.  v. 

Ileimann,  94  Ind.  24, 
Norton  v.  Moshier  (111.),  28  N.  E. 

Rep   463, 

v    State,  106  Ind.  iC>t„    162,  232, 
Norvell  v    Hit  1 1  \  23  lnd.  346, 
Norwood  v.  Kenfieid,  30  Cal.  393, 
Norwich,   etc.,   Co.    v.   Worcester, 

147  Mass.  518. 
Norwich.    Mayor   of,    v.    Berry,   4 

Burr.  2277. 
Nowlm  v.  Whipple,  S9  Ind.  490,   288, 
Nowling  v.  Mcintosh,  89  Ind.  595. 
Nudd  v.  Burrows,  91   U.  S.  426, 
Nugen  v   Laduke,  87  Ind.  482, 
Numan  v.  Valentine,  S3  Cal.  5SS, 

Numbers  v.  Bowser,  29  lnd.  491, 
Nutter  v    Junction   R.  Co.,  13   Ind. 

479. 

v    State,  9  Ind.  17S, 

Nutting  v.  Losance,  27  Ind.  37, 

Nye  v.  Lewis,  65  Ind.  320, 

v.  Lowry,  S2  Ind.  316, 

NyseWander  v.  Lowman,  12 1   Ind. 

5S4,  146,  2S5,  520, 


757. 


581 

495 

333  ■ 

573 

7S4 
334 

49- 
253 

555 
(no 

650 

368 

589 

9 

395 
124. 

I2s 
567 

354 
782 

7''x 
76l 

555 

635 


o 


61 

2S7 
253 

59- 


O'Boyle  v.  Shannon,  80  Ind.  159.         62 
O'Brien  v.  Browning,  49  How.  Pr. 
109, 

v.  Commonwealth  (Kv.),  12  S. 
W.  Rep.  471,  530 

v.  Gaslin,  24  Neb.  559,  (.91 

v.  Peterman,  34  Ind.  556,     20;.  751 
v.  State.  63  Ind.  242,  407 

v.  State.  125  Ind.  5s.  ('72.  680 


'.^  LV 


TABLE   OF  CASES 


[References  a 

O'Brien   v.  Vulcan   Iron   Work-,  7 

Mi  1    A  pp.  257,  528,  62  1 

(  >'Callahan  v.  Bode,  S4  Cal.  489, 

574 
( )  «.  onnell  v.  Gillespie,  17  Ind.  459, 

v.  O'Leary,  1  5  1  Mas-.  83, 
1  '  v    mnor  v.  Guttiie,  d  la 
(  >'Dea  v.  Stat,-.  57  [nd.  31, 
O'Dell  \ .  Carpenter,  71  Intl.  463, 
O'Donald  v.  Constant,  82  Ind.  212. 


57°, 
666 

34- 

43 

491 

619 

792 
281 
172, 
747 
703 
139 

129 
254 

12  2 

411 
30 

547 
619 


O'Donnell  v.  Segar,  2^  Mich. 367, 

<  I'Dowd  v.  Russell,  1  \  Wall.  402, 
O'Hara  v.  MacConnell,  93    U.  S 

150, 

<  )'l  lare  v.  People,  40  111.  533, 
( )'Kane  v.  Daly,  63  Cal.  317, 
O'Leary  v.  Iskey,  12  Neb.  136, 

V.  Sloo,  7  La.  Ann.  25, 

O'Neal  v.  Wade.  5  Ind.  410, 

O'Neall  v.  Calhoun,  67  111.  219, 

O'Neil  v.  Chandler,  42  Ind.  471,  174,  -440 

v.  New  York,  etc.,  Co.,  115  N. 

Y.  579,  391 

O'Neill  v.  Jones,  43  N.  Y.  84,  1550 

O'Reilly  v.  Edington,  96  U.  S.  724,  20S, 

212,  31S,  324 

v.  New  York,  etc.,  Co.  (R.  I.), 

17  Atl.    Rep.  906, 

O'Shea  v.  Kirkes,8  Abb.  Pr.69, 
O' Sullivan  v.  O'Connors,  22  linn. 

[37, 
v.  Roberts,  39  N.  Y.  360, 
Oakland    Paving  Co.  v.  Bogge,  79 

Cal.  439, 
Ober  v.   Indianapolis,  etc.,  Co.,   13 

Mo.  App.  81, 
Oberfelder  v.  Kavanaugh,  29  Neb. 

427. 
Obernalte  v.  Edgar,  2S  Neb.  70, 


H3 
603 

325 
652 

4S1 


774 
537 


Ochs  v.  People,  124  111.  399,  528,  559 
Odell  V.  Carpenter,  71    Ind.  463,  282 

v.  Reynolds,  40  Mich.  21,  647 

Oder  v.  Commonwealth,  So  Ky.32,  160 
Oelricks  v.  Spain,  15  Wall.  211,  1,2 

iorn  v.  Hoffman,  52  Ind.  439,        759 

Ogden  v.  Saunders,   12  Wheat.  213,     5S 

Ogilvie  v.  Richardson.  14  Wis.  1^7,  467 

v.  Dill.  55  Ind.  130,      85,  300,  345, 

025,692,  719 

Ohio  v.  Cowles,  5  Ohio  St.  87,  63S 

Ohio,  etc.,  Co.  v.  Collarn,   73  Ind. 

261,  674 

v.  Dooley,  32   111.  App.  22S,        571 

v.  Hardy,  64  Ind.  454,  313,  321 

v.  I  lavs.  35  Ind.  173,  748 

v.  I  I  r,  43  Ind.  402,  297 

v.  McCartney,  121   End.  385,        345, 

'  746,  782 


re  to  Pages.] 

(  (hio,  etc.,  Co.  v.  Nickless,  73  Ind. 

3S^>  373.  562, 

\.    I  rowhridge.  t26  Ind.  391, 
v.  Voight,  t22  Ind.  2S8, 
v.  Walker.  1  [3  Ind.  [96,         730. 
Ohm's   Est.,  In  re,  82  Cal.  160, 
Oiler  v.  Bodkey,  17  Ind.  600, 
Old  v.  Mohler,  122  Ind.  594,       2S3, 

39°i 

Oldenberg  v.  Devine,  p>  Minn.  [.09, 
Olds  v.  Deckman,  98  Ind.  162,    164, 

v.  State.  6  Blackf.  9] . 
Olds     Wagon   Co.   v.    Benedict,    25 

Neb.  372, 
Oliver  v.  Depew,  14  la.  490, 

v.  Pate,  13  Ind.  132,  537, 

v.  Phelps,  Spencer    N.J.),  is", 
Ollam  v.  Shaw.  27  Ind.  388,  533,689, 
Olmstead  v.  Abbott.  61  N't.  281, 
Olney  v.  Hatcliff,  37  Hun.  286, 
Olson  v.  Solverson,  71  Wis.  663, 
Olvey  v. Jackson,  106  Ind.  2S6, 
Omaha,  etc.,  Co.  v.  Tabor,  13  Col. 

41, 
Oneal  v.  State,  47  Ga.  229, 
Onondaga,  etc.,   Co.  v.    Minard,  2 

N.  Y.  98, 
Ophir,  etc.,  Co.  v.  Carpenter,  6  Nev. 

393- 

Opdvke  v.  Marble,  44  Barb.  64, 
Opp  v.  Ten  Eyck,99  Ind.  34;,    213, 

3°9.  32S< 

v.  Ward,  125  Ind.  241, 

Oppenheim   v.   Pittsburg,  etc.,  Co., 

85  Ind.  471,  147,  1S7, 

Opinion  of  Justices,  21  N.  E.  Rep. 

439,  ^3   Fla.  297,  49  Mo.  216,  79 

Ky.621,  5 

Oregon,  etc.,  Co.  v.  Barlow,  3  Ore. 

311,  616 

Oregonian  Ry.  Co.  v.  Oregon,  etc., 

Co.,  27  Fed.  Rep.  277,  494 

Ormes  v.  Dauchy,  82  N.  Y.  443,        550 
Orr  v.  Fleek,  111  Ind.  40,  9 

v.  Miller,  98  Ind.  436,      SS,  612,  613 
v.  Worden,  10  Ind.  553,  162 

Orth  v.  Dorschlein,  12  Mo.  366,         554 
Ortman  v.  Dixon,  9  Cal.  23,  |62 

Orton  v.  Tilden,  no  Ind.  131,    248,  274, 

394-   75s 

Osborn  v.  Sutton,  10S  Ind.  443,         419, 

v.  UnitedStates  Bank,  9  Wheat. 

73S,  16, 217 

v.  Kline,  18  Neb.  344,  615 

v.  Poe,  6  Humph,  in,  117 

v.  State,  12S  Ind.  129  592 

Osborne  &  Co. v.  Williams,37  Minn. 

507,  402 

Oscanyan  v.  Arms   Co.,  103  U.  S. 
261,  416.  617 


773 

7"7 
77i 
7:^ 

65 
790 

394, 

5f'7 
294 
7(7 
306 

769 
554 
760 

267 

( >g< , 

216 

r,96 

655 
704 


791 

7.5° 

411 
697 

308, 

339 
328 

284 


TABLE  OF  CASES 


xcv 


\Referen 
Osgood  v.  Jones.  60  N.  II.  5  |j.  1592 

v.  State,  6 1  Wis.  172.  67  , 

Oshkosh,  etc.,  Co.  v.  Germania,  etc., 

Co..  71  Wis.  454. 
Ostrander,  Ex  parte.  1  Denio,  679,     440 
Ostrander  v.  Clark,  S  Ind.  211,  521 

v.  Weber,  114  \.  Y  .  95,  729 

Oswald  v.  Wolf,  25  Ill.App.  501,         44 
Otis  v.  De  Boer,  116  Ind.  531,  147, 

2S5,  488 
Otter  Creek,  etc.,  Co.  v.  Ranej 

Ind.  329,  624,  686 

Outlaw  v.  Davis.  27  111.  466,  577 

Over  v.  Schiffling,  102  Ind.  191,  5  V 

699,   702 
v.  Shannon,  75    Ind.  352,      507,  562, 

608,    609 

( >\erly  v.  Tipton,  68  Ind.  410,  599, 

Overton  v.  Overton,  17  Ind.  226,  45,  50 
Owen  v.  Cooper,  46  Ind.  524,  179 

Owen  v.  Going,  13  Col.  290,  383 

v.  Phillips,  73  Ind.  2S4,  566 

Owen  School  Tp.  v.  Hay,  107  Ind. 

351.  "  394-  396 

Owens  v.  Branson,  2S  Mo.  App.  5S4,   7(1 

v.  Crossett,  104  111.  joS,  go 

v.  Mitchell,  33  Tex.  225,  74 

Owings  v.  Kincannon,  7  Pet.  399,      139 

Owne  v.  Going,  7  Col.  85,  6S,  71 


Pacev  v.  Powell,  97  Ind.  371,  53 

Packard  v.  Backus,  7S  Wis.  iSS,         663 
v.  Mendenhall,  42  Ind.  598,  393 

Packet  Co.  v.  Sickles.  \^  Wall.  611,  769 
Pacific  R.  R.  Co.,  In  re,  32  Fed.  Rep. 

241.  26 

Pacific,  etc.,  Co.  v.  Bolton,  S9  Cal. 

'54-  3J9 

Pacific  Exp.  Co.  v.  Malin,  132  U.  S. 

531-  76i 

Padgett  v.  State,  93  Ind.  396,      335.  462 

Page,  Estate  of,  57  Cal.  238,  7<u 

Page  v.  Commonwealth,   27   Gratt. 

954-  679 

v.  Latham,  60  Cal.  601,  447 

v.  Sumpter,  53  Wis.  652,  485 

Pahmever  v.  Groverman,  60  Ind.  7,  261 
Paige  v.  O'Neal,  12  Cal.  483,  736 

v.  Fazackerlv.  36  Barb.  392,  402 

Paine  v.  Cowdin,  17  Pick.  142,  463 

v.  Moorland,  15  Ohio,  435,  2^;. 

435-  "7- 

v.  Woollev.  So  Ky.  56S,  127 

Painter  v.  Guirl,  71   Ind.  240,  4'' 

Palairet's  Appeal,  67  Pa.  St.  479,       105 

Palmer  v.  Arthur.  131  I".  S.  60,  636.653 

v.Chicago,  etc.,  Co.,   112    End. 

250.  644.  723 


re  tii  Pages.\ 

Palmer  \  .  '  I  lun.  t>t>t>, 

Davis,  2I   \  .  Y.  242, 

v.  1  laves.  112  Ind.  ; 

v.    Oakley.    2     Don-.    (Mich.). 


Pittsburgh,  etc.,  Co.,  1 12  Ind. 


Pr.235, 
Kan.   295, 

4.sS. 
502, 


433- 

v. 

260, 

v.  Rogers,  70  la.  381 
Pam  v.  Vilmar,  54  How. 
Pamer  v.  Rombauer,  41 

21  Pac.  Rep.  7^  |. 
Panton  v.  Manley,  89  I!!. 

Pape  v.   Wright,  1  16  Ind. 

Park  v.  Balentine,  6  Blackf.  22^. 

Parker.  Ex  parte.  120  U.  S.  737 
Parker,  Ex  parte.  131  L'.  S.  221, 
Parker  v.  Bates.  20  Kan.  597, 

v.  Clayton.  72  Ind. 307.  393,394, 
v.  Commonwealth,  8  P.  Mon.30, 
v.  Courtnay,  2S  Neb.  60;, 
v.  Cutler  Milldam   Co..  20  Me. 

353< 

v.  Dacres,  2  \\  ash.  Ty.  440, 

v.  Enslow,  102  HI.  272. 

v.  Georgia,  etc..  Co..  S3  Ga.  539. 

537- 

v.  Hastings.  12  Ind.  654, 

v.  Home,  3S  Miss.  215. 

v.  Hubble,  75  Ind.  580,     19,  476. 

v.  Indianapolis  Nat.  Bank,  126 
Ind.  595, 

v.  McAllister,  14  Ind.   12. 

v.  Meadows.  86  Tenn.  1S1, 

v.  Medsker,  So  Ind.  155,       507. 

v.  Morrell,  2  Phil.  453, 

v.  Morrill,  106  I".  S.  1, 

v.  People,  13  Col.  155.       .     545, 

v.  Reay.  76  Cal.  103. 

v.  Remington,  etc..  Co.,  24  Kan. 
31.  200, 

v.  Richolson,  46  Kan.  2S3, 

v.  Russell,  3  Blackf.  411, 

v.  Small.  58  Ind.  349, 

v.  State,  Si  Ga.  ^^2, 

v.  State.  7S  Ind.  259,  251, 

v.  Urie,  21  Pa.  St.  305, 

v.  Winnipiseogee  Co.,  2  Black, 


4-' 


459 

593 

146 

i:i 
739 

43* » 

70'. 
396 
67+ 


261 

539 

140 
718 

3° 
420 

4s- 
666 

'7 
444 
679 

7s'' 
201 

43 
604 


545- 

Parks  v.  Barney,  55  Cal.  239. 
\ .  Boston,  15  Pick.  19S, 
v.  Hazlerigg,  7  Blackf.  536, 
v.  Ross.  1 1  I  low.  362, 
v.  Young,  75  Tex.  278, 

Parratt  v.  Neligh,  7  Neb.  456, 

Parmelee  v.  Fischer.  22  111.  212, 

Parmater  v.  State.  102  1  nd 

Parmlee  \ .  Sloan.  37  Ind 

Parsley  v.  Fskew.  73  Ind. 

Parson  v.  Haskell.  30  111.  App.  444. 
ms  v.  Hedges,  15  la.  1 19. 


[92 

594 
109 

3*3 

4s" 
615 

75 ] 

45 
545 


XCV1 


TABLE  OF  CAS1  S. 


Parsons  v.  Loyd,  3  Wills.  341, 

v.  Milford,  67  Ind.  489, 

\ .  Piatt,  37  Conn.  563, 

v.  Stockbridge,  42   End.  121, 

Partridge  v.  Gilbert,  3  Dun.  [S4, 

Pass  \ .  Paj  ne,  63  M  iss.  ; 

I '     1  >ur  v.  Linebergei .  90  N.  C.  [59 

Passmore  v.  Passmore,  [13  Ind.  237,  508 

Patapsco,  'J'liL'.  1  2  Wall.  | 5  1 .  :<< 

Paul  \ .  1  )avis,  too  1  nd.  422,  47  \ 

Pauley  v.  Cauthorn,  toi  Ind.  91, 

Paulman  v.  Claycomb,  7;  Ind.  64, 

Paulsen  v.  Manske,  126  111.  72. 

Pavey    v.   American    Ins.    Co.,   56 

Wis.  221, 

\ .  Pa\  (v.  30  Ohio  St.  C100, 

v.  Wintrode,  87  Ind.  379,     773,  771 

Pawling  v.  L  nited  States.  4  Crunch. 


{References  are  to  Pat 

Payne  v.  Miles,  20  How.U.  S.2i< 


-'SO 

?>- 

r  1 
625 

31- 


6 

69  2 
63S 


219 
Paxton  v.  Daniel.  1  Wash.  16, 


040 

633 
Pate  v.  F  irsl  Nat.  Bank,  63  Ind.  254,  413 

69 

483 
670 

S3 
254 
655 
689 


M  oore,  79  1  nd.  20, 
v.  Roberts,  55  Ind.  277, 
v.  Tait,  -2  Ind.  450, 

Pati  rson  v.  Hopkins.  23  Mich.  541, 

Pal  tee  \ .  state.  109  1  nd.  545,      2  59 

Patten  v.  Belo,  70  Tex.  41,  ' 
1  son  v.  Ball,  19  Wis.  243. 
v.  Churchman,  [22  Ind. 379,  696,  771 
v.  Copeland,  52  How.  Pr.  |.6o,  601 
v.  Crawford,  12  Ind.  241.  589 

v.  Hamilton,  26  Hun.  665,    138,  143 
v.  Indianapolis,    etc.,    Co.,    56 
Ind.  20,  269,  6S9 

v.  Jack,  59  la.  (>t)2.  7S9 

v.  Lord,  47  Ind.' 203,  300,  345 

v.  Philbrook,  9  Mass.  151,  61 

v.  Prior,  18   Ind.  4  (.0,  5S9 

v.  Rowly,  65  Ind.  10S,  126 

v.  Scottish- American  Co.,  107 
Ind.  497.  268,  297,  4  iS 

v.  State.  70  Ind.  341,  530 

v.  Stiles,  6  la.  5  f,  391 

v.  Woodland.  28  Neb.  250,     92,   [09 

Pattison  v.  Bacon,  \2  Abb.  Pr.  142,  733 
v.  Shaw.  6  [nd.  377,  596 

\  .  Smith,  93   I  nd'.    117,  81 

v.  Vaughan,  40  Ind.  253.  399 

Patton  v.  Gash,  99  \.  C.  28,  401 

\ .  ll.11  dlton,  [2  Ind.  256,  561 

Patrick  v.  Graham,  132  U.  S.  627,  570 

V.  Jones.  2 1  Ind.  2  19,  63S 
Patn  v.  Chicago,  etc.,  Co..  77  Wis. 

21S,                '  581 
Pavne  v.  First  Nat.  Bank,  43  Mo. 

App.  377.  57i 

v.  Flournoy,  29  Ark.  ^00.  635 

v.  Hardesty    ( Kv.i.    1  (    S.    W. 

Rep,  348,       "  545.  654 

v.  June.  92  Ind.  252.  53,  572 


Peabodv  v.  Phelps,  (jCal.  213. 

v.  Sw  eet.  3   Ind.  5  I  (. 

Pearce  \.  i'(  ttit,  85  Tenn.  724. 

Pearcy  v.   Michigan,  etc.,  Co..  in 
Ind.  59, 

Pearson  \ .  Carlton,  iS  S.  C.  47. 
\ .  1  >arrington,  32  Ala.  227, 
\ .  1  (ousehold,  etc..  Co.,  7S  Tex. 

385. 

v.  Pearson,  125  Ind.  341,     216, 

v.  Pierson,  128  Ind.  479, 
Peck  v.  Hoard.  87   Ind.  22  1, 
\ .  Courtis,  31  Cal.  207, 
v.  Childers,  73  Mo.  4^4. 
v.  Hensley,  51  Ind.  344, 
v.  Louisville,  etc.,  Co.,  101  Ind. 
366, 

v.  Sanderson,  18  How.  42, 
v.  Sims,  120  Ind.  345, 
v.  Strauss,  33  Cal.  C7S, 
v.  Vandenburg,  30  Cal.  11, 
v.  Yong,  1  How.  250,  125, 

Pcdcn  v.  King,  30   Ind.  1S1,         724, 
v.  Mail,  1  t8  Ind.  556, 
v.  Noland,45  Ind.  354.  276,  50S, 
Pedigo  v.  Grimes,  113  Ind.  [48, 

700, 
Pedrick  v.  Post,  s(lnd.  255, 
Peed  v.  Brenneman,  72  Ind.  2S8, 

616, 
Peebles  v.  Rand,  43  N.  II.  337, 
Peele  v.  State.  1  is  Ind.  512,        10S, 
Peery  v.  Greensburgh,  etc.,  Co.,  43 
Ind.  321,  562>6o5. 

Pegram  v.  Carson,  iS  How.  Pr.519, 
Peirce  v.  Higgins,  ioi   Ind.  178, 
Pelham  \ .  Page,  6  Ark.  535. 
Pemberton  v.  Johnson,  113  Ind.  538, 
Pence  v.  Christman,  15  Ind.  257. 
v.  Garrison,  93  Ind.  34^,     480, 
626, 
v.  Langdon,  99  U.  S.  578, 
v.  State.  1  10  1  ml.  95,  256, 

Pendergast  v.  Hodge,  21  Mo.  App. 

t3§,  ' 
Penhrvn     Slate    Co.    v.    Mever,   8 

Daly.  61, 
Penn  v.  Lord  Baltimore,  1  Vcs.  Sr. 

Ill- 
Pennington  v.  Nave.  [5  Ind.  323, 

\ .  St reight,  >4  [nd.  376, 
Pennock  v.  McCormick,  120  Mass. 

27S> 
Pennsylvania,  etc..  Co.  v.  Cook.  123 

Pa.  St.   170. 

v.  Dean.  92  Ind.  459, 


III, 
136 

1  47 
628 
610 

529 

599 

11b 

44r' 
416, 

5S7 
59° 
6S2 

id., 

■Is'' 
788 

774 

.(ON 

597 

672 

74 
III 
74S 
736 
636 

536, 

773 

213 
292. 
71S 

647 
306 

674 
697 

3-7 
021 

791 

7so 

532- 

779 

573 
257 

4S5 
616 

420 

506 

9 

765 

3°7 

604 


TABLE  OF  CASES. 


XCVII 


[References  a 

Pennsylvania  R.  R.  Co.  v.  First 
German  Lutheran  Congregation, 
53  Pa.  St.  445,  _  26 

Pennsylvania  Co.  v.  Gallentine,  77 
Ind.  322,  266,  279 

v.  Holderman,  69  Ind.  iS,    1S3,  1S4, 

606 
v.  Marion,  104  Ind.  339,       486,  562, 

663 
v.  Nations,  11 1  Ind.  203,  791 

v.  Newmeyer,  2S  \.  E.  Rep.  860,  541 
v.  Niblack,  99  Ind.  149,  187,29''.  768 
v.  Poor,  103  Ind.  553,  562.  565 

v.  Roonev,  S9  Ind.  453,  403,  545 
v.  Roy,  102  U.  S.  451.  65S,  659 

v.  Stegemeier,  118  Ind.  305,  t,^ 

v.  Weddle,  100  Ind.  13S,  691 

Penobscot,  etc.,  Co.  v.  Weeks,  52 

Me.  4.56,  667 

Penrice  v.  Wallis,  37  Miss.  17:, 
Pensacola  v.  Reese,  20  Fla.  437, 
People  v.  Alpin,  86  Mich.  393, 
v.  Anderson,  44  Cal.  65, 
v.  Anthony,  25  111.  App.  532, 


457 
272 

578 
623 

43S, 

757 
531 


v.  Arceo,  32  Cal.  40, 

v.    Bachman     (Cal.),    23    Pac. 

Rep.  1090,  3S3 

v.  Barker,  60  Mich.  277,  254,  528 
v.  Beaver,  83  Cal.  419.  164,  254 

v.  Board,  23  111.  App.  3S6,  666,  679 
v.  Board,  100  111.  495,  5S,  479 

v.  Board,  60  Hun.  4S6,  592 

v.  Boggs,  20  Cal.  432,  619 

v.  Bonds,  1  Nev.  33,  61S 

v.  Bonney,  19  Cal.  426,  538 

v.  Brennan,  79  Mich.  362,  239.  257 
v.  Buddensieck,  103  N.  Y.  487.  538 
v.  Burns,  7S  Cal.  645,  125 

v.  Callaghan,  4  Utah,  49,  239 

v.  Carnal,  6  N.  Y.  463,  230 

v.  Carty,  77  Cal.  213,  617 

v.  Center,  61  Cal.  191,  7S0 

v.  Chalmers,  5  Utah,  201,  617 

v.  Chen  Sing  Wing,  88  Cal.  268, 
v.  Ching  I  ling  Chang,  74  Cal. 

3S9,  610 

Citv  of  Syracuse,  7S  N.Y.  56,  516 

232 

2>I 
57S 
6lO 

436 

250 
230 

'71 
31 
,  District  Court,  etc.,   14  Col. 

396-  439 

73$ 


v.  Clark,  7  N.  Y.  385, 

v.  Cline,  S3  Cal.  374. 

v.  Coffman,  59  Mich.  1, 

v.  Collins.  75  Cal.  41 1, 

v.  Collins,  19  Wend.  56, 

v.  Cornetti,  92  N.  Y.  85, 

v.  Corning,  2  Corns.  (N.  Y.)  9, 

v.  Curling,  1  Johns.  320, 

v.  Davidson.  30  Cal.  379, 

District  Court,  etc.,   14  Col. 


Doe.  1  Mich.  451, 
G 


re  to  Pi 

\ .  Dulaney,  96  111.  503, 
v.  Durfee,  62  Mich, 
v.  Eldrige,  7  How.  Pr.  10S, 
\ .  Evans,  72  Mich.  367, 
V.  Ferris.  35  X.  Y.  125, 
v.  Flack,  15  Daly,  442, 
v.  Garcia.  25  Cal.  531, 
v.  Garnett,  130  111.  340, 
v.  Gaunt,  23  Cal.  156, 
v.  Genet,  59  N.  Y.So, 
v.  Goldenson,  76  Cal.  32S, 
v.  Gonzales,  35  X.  Y.  49, 
v.  1  (agar,  52  Cal.  171,  147, 

v.  Hall,  48  Mich.  4S2,  700, 

v.  Hawes,  25  111.  App.  ^2^1. 
v.  Hawkins,  46  N.  Y.  9, 
v.  Hillhouse,  So  Mich.  580, 
v.  Hillsdale,   etc.,  Co.,  2  Johns. 
190, 
v.  Honeyman,  3  Den.  121, 
v.  Hoyt,  4  Utah,  247,    528,  530, 
v.  Johnson.  3S  X.  Y.  63, 
v.  Judge  of  Way ne  Co.,  1  Mich. 

359, 

v.  Judges.  2  Johns.  Cas.  6S, 

v.  Justice.  20  Wend.  663, 

v.  Keeler,  99  X.  Y.  463, 

v.  Keenan,  13  Cal.  5S1, 

v.  Kelly,  94  X.  Y.  526. 

v.  Kelly.  35  Hun.  295, 

v.  Kennedy.  57  Hun.  532, 

v.  Knight.  2  Caines,  os. 

v.  Leaton,  25   111.  App.  45,  [21 

111.  App.  ( A  1  320, 

v.  Lee,  1 4  Cal.  510, 
v.  Leonard.  11  Johns.  504, 
v.  Livingston.  80  N.  Y.  66, 
v.  Lynch.  54  N.  Y.  6S1, 
v.  McKay,  iS  Johns.  212. 
v.  McKenna,  58  Hun.  609, 
V.  Maynard,  14   111.  419. 
v.  Mayor,  etc.,  32    Barb.  35, 
v.  Mathes,  4  Wend.  229, 
v.  Mellon.  40  Cal.  6  Is, 
\.  Merrill,  14  Kern  (N.  Y.), 74, 
v.  Millard,  53  Mich.  63,         700, 
v.  Miller.  4  Utah,  410, 
v.  Mills,  109  X.  Y.  69, 
v.  Montague,  71  Mich.  447, 
v.  Muller,  96  N.  Y.  40S, 
v.  Mullings,  S3  Cal.  13S, 
v.  Murray,  5  Hill.  46S,  127. 

v.  Nash,  1  Idaho.  206, 
v.  Nelson,  85  Cal.  421, 
\ .  Nestle,  19  N.  Y.  583, 
v.  Nevada.  6  Cal.  143. 
v.  Noonan,  60  1  lun.  578, 
v.  Northey,  77  Cal.  618,       469, 
v.  O'Brien,  ss  Cal.  483,       164, 
v.  Page,  1  Idaho.  102. 


535 

90 

6S1 

435 
578 
24S 
617 

704 

43s 
612 


497 

436 
435 
440 

3 

534 
534 
572 

7^7 
34 

3-' 

43S 

34 

497 

249 

,  3 
601 

7-.7 

127 

57i 

4*5 
145 

7V- 


Dig 


XCV111 


TABLE   OF  CASES. 


People   v.    Rector,  etc.,  6  Abb.  Pr. 
.;;.  696, 

v.  Redinger,  55  Cal.  290. 
v.  Reed,  Si  Cal.  70, 
v.     Rensselaer,    etc..     Co.,     15 
Wend.  11  v 
v.  Re\  nolds,  16  Cal.  128, 
v.  Rose.  52  Hun.  33, 
v.  Samario,  S4  Cal.  48  (. 
v.  Schad,  58  Hun.  571. 
v.  Scharnweber,  119  111.  445. 
v.  Sing  Lum,  61  Cal.  53S,   252, 
v.  Soy,  "  Cal.  102, 
v.  Stimer    (Mich.),  46  N.   W. 
Rep.  28, 

v.  Superior  Court,  5  Wend.  114, 

v.  Superior  Ct.,  19  Wend.  68, 

v.  Supervisors,  20  Mich.  95, 

v.  Swift,  ^9  Mich.  529, 

v.  Tarbell,  17  How.  Pr.  R.  120, 

v.  Taylor,  36  Cal.  255, 

v.  Taylor,  34  P>arb.  481, 

v.  Teague,  106  N.  C.  571, 

v.  Terrell.  s8  Hun.  602, 

v.  Tibbitts,  19  N.  V.  523, 

v.  Toal  (Cal.),  23  Pac.  Rep.  203, 

v.  Sackett,  14  Mich.  320,      663, 

v.  Tracv,  1  Denio,  617, 

v.  Turcott,  65  Cal.  126, 

v.  Von,  7S  Cal.  1. 

v.  Waite,  70  111.  25, 

v.  Wallace,  89  Cal.  158, 

v.  Walter.  68  N.  Y.  403, 

v.  Wheatley,  88  Cal.  114, 

v.  Wiley.  3 'Hill,  194. 

v.  Wilkinson,  60  Hun.  582, 

v.  Williams,  24  Cal.  31, 

v.  Wilson.  26  Cal.  127, 

v.  Wibon,  64  111.  195, 

v.  Wilson,  55  Mich. '506, 

v.  Woodside,  72  111.  407. 

People's  Bank  v.  Shyrock.  4S   Md. 
427, 

People's    Co.  v.    Babinger.  40    La. 
Ann    2  (7. 

People's  Savings  Bank  v.  Finney, 
63  Ind.460,  117-  r54i  36l> 

People's  Savings, etc.,  Co. v.  Spear-. 
1 15  Ind.  297,  296.  72;. 

Peoria,  etc.,  Co.  v.  Walser,  22  Ind. 

73. 
Pepper  v.  Dunlap.  5  How.  51, 
Peralta  v.  Adams.  2  Cal.  594, 

v.  Castro,  15  Cal.  511. 
Perdue  v.  Aldridge.  19  Ind.  290. 
Perkins  v.Bakron,39  Mo.  App.  331, 

v.  Pates,  (<i  Tex.  190. 

v.  Hurley.  64  N.  H.  524, 

v.  Ermel.  2  Kan.  325. 

v.  Fourniquet,  6  How.  206, 


248 

7i3 

28 
736 
739 
176 

787 
623 

6S1 

529 

66 

516 

435 
61 

437 
146 

573 
64S 

775 
661 

^7 

f'5 

79^ 

440 

577 

59- 
659 

78/ 

739 
6S0 
112 

7 
617 

66S 

19- 
30S 

443 

75' 

6SS 

499 
440 

--( 
5-1 
756 

449 

622 

614 

74 


Ala. 

127, 


re  to  Pages.] 

Perkins  v.  Fourniquet,  14  How.  32S, 
v.  Hayward,  124  Ind.  445,      [68, 

;"s.  5  Is-  ' 7!  [, 

v.  Marrs,  15  Col.  26j, 
Perrin  v.  Johnson.  16  Ind.  72, 
Perry.  Ex  parte,  102  U.  S.  1S3, 
Perry  v.  Bailey,  12  Kan.  539, 
\ .  Burton,  126  111.  599, 
v.  Makemson,  103  Ind.  300, 
v.  Tupper,  70  N.  C.  53S, 
Perrvman    v.    Greenville,    51 

507, 
Persons  v.  Alsip,  2  Ind.  67, 

v.  McKibben,  5  Ind.  261, 
Perteet  v.  People,  70  111.  171, 
Peru  v.  Beares,  q^  Ind.  576, 
Petefish  v.  Watkins,  124  111.  3S4, 
Peterman  v.  Ott,  45   Ind.  224, 
Peters  v.  Banta,  120  Ind.  416,     266, 

394- 
v.  Guthrie.  119  Ind.  44,  527. 

v.  Lane,  55  Ind.  391.    624,686, 
Peterson  v.  Gresham,  25  Ark.  380, 
v.  Hutchison,  30  Ind.  38,      510, 
v.  Ottawa,  41  Kan.  293, 
v.  Swan,  119  N.  Y.  662, 
v.  Toner.  80  Mich.  350. 
Petrv  v.  Ambrosher,  100  Ind.  510, 
Pettigrew  v.  Barnum,  1 1  Md.  434, 

Pettis  v.Johnson,  56  Ind.  139, 
Petty  v.  Trustees,  etc.,  95  Ind.  27S, 
Pettygrove  v.  Rothschild,  2  Wash. 

6," 
Peyton  v.  Kruger,  77  Ind.  486, 
Pfeiffer  v.  Crane,  S9  Ind.  4S5,       68 

Pharo  v.Johnson,  15  la.  560, 
Phelan  v.  Boylan,  25  Wis.  679, 

v.  San  Francisco,  9  Cal.  15, 
Phelps  v.  Mayer.  15  How.  160, 

v.  Osgood,  34  Ind.  150, 

V.  Phelps.   17   Md.   I20, 

v.  Smith,  116  Ind.  3S7,  10S, 

v.  Tilton,  17  Ind.  423,  7S2. 

Philadelphia,  City  of,  v.  Campbell, 

1 1  Phila.  162, 
Philadelphia,  etc.,  Co.  v.  Harper,  29 
Mil.  530, 
v.  Little,  41  N.  J.  Eq.  519, 
v.  Shipley,  7J  Md.  88, 
v.  Stimpson,  14  Pet.  44S, 
v.  Waterman,  54  Pa.  St.  337, 
Phillip  v.  Gallant,  62  N.  Y.  2^(>. 
Philips  v.  New  York,  etc.,  Co.,  53 

Hun.  634, 
Philips,  etc.,  Co.  v.  Seymour, 91  U. 
S.  646, 


439 
202, 

756 
581 
300 

435 

621 
490 

57- 
496 


4'5 
596 
568 

35- 
62 

791 

1 12 

290 
718 

i„,( 
786 

79 1 
555 

231 

176 

690 
596 

7«3> 

739 
509 

"55 

654 

455 

■  69, 

229 

7^7 
3- 
494 
200 
1S2 
[92 
371. 
713 
786 


H5 

545 

79 
160 

533 
192 

664 
618 
260 


TABLE  OF  CASES 


XC1X 


1  l5 

I  12 

9S 


/?(  t,  renct  s 

Phillips  v.  Preston.  11  How.  294, 

v.  Shelton,  6  la.  5 15. 
Phillippi   v.  McLean.   5   Mo.   App. 

Phil  ipsburgh   Bank    v.    Fulmer,   2 

Vr.     N.J.i  j»,  620,  621 

Philpot  v.  Taylor,  75  111.  312,  704 

Phoenix    In>.  Co.  v.  Moog,  Si  Ala. 

v.  Readinger,  28  Neb.  587,   763,  7S9 
Physio- Medical  College  v.  Wilkin- 
son, s<)  End.  23,  52 
Pick  v.  Rubicon,  etc.,  Co.,  27  Wis. 

43.3.  53s 

Pickens  v.  Hobbs,  42  Ind.  270,    530.  531 
Pickering  v.  State,  106  Ind.  22S,        154, 
2S5,  419,  672 
Pico  v.  Cuyas,  4S  Cal.  639,  497 

Piedmont  Mfg.  Co.  v.  Buxton,   105 

N.C.74,  64,99 

Piel  v.  Braver,  30  Ind.  332,  295 

Pierce  v.  Bicknell,  11  Kan.  262.  635,736 

v.  George,  30  Mo.  App.  650,  44 

v.  McConnell,  7  Blackt.  170,         732 

v.  State,  67  Ind.  354,  529,  679 

v.  State,  75  Ind.  tgg,  256 

v.  Wilson,  4S  Ind.  298,  294 

Pierse  v.  West,  29  Ind.  266,   14,  112, 

Pierson  v.  Hart,  64  Ind.  2^4. 

v.  McCahill,  22  Cal.  127, 

v.  McCahill,  2^  Cal.  249, 


11S 
523 


456 

v.  State,  9  Ind.  363,  64,  232 

Piggott  v.  Ramev.  1    Scam.  145,  516 

Pike  v.  Evans,  15  Johns.  210,  405, 

55°'  793 
v.  Megoun,  44  Mo.  491,  58,  (.79 

Pinkham  v.  McFarland,  5  Cal.  137,  513 
Piper  v.  White.  56  Pa.  St.  90,  700 

Pipkin  v.  Allen,  29  Mo.  229.  75 

Picpta  Bank  v.  Knoup,  6  Ohio,  342,     19 
Pireaux  v.  Simon,  79  Wis.  392,  65S 

Pitnam  v.  Mvrick.  16  Fla.  401,  324 

Pittnam  v.  Wakefield   (Ky.).    13   S. 

W.  Rep.  525,  17 

Pitts  v.  Tilden,  2  Mass.  11S,  310 

Pittsburgh,  etc.,  Co.  v.  Adams,  105 
Ind.i;t.  579 

v.  Board,  2S  W.  Va.  264,  62 

v.  Conway.  57  Ind.  52, 
v.  llixon,  1 10  Ind.  22  v  2SS.  491,  7^'> 
v.  Martin,  ^2  Ind.  476,  520 

v.  Noel,  77  Ind.  110.      535,678,690 
v.  Porter,  ^2  Ohio  St.  328,  621 

v.  Probst,  30  Ohio  St.  104,  769 

v.  Ruby,  3S  Ind.  294,     470,  60 
v.  Spencer,  9S  Ind.  1S6,         70S.  709 
v.  Sponier,  S5  Ind.  165,         574,  7SS 
v.  Swinny,  91  Ind.  399,  128,  {50,  352 
v.  Thornburgh,  98  Ind.  201.         394 


tirr  to  Pagi 

Pitl       rgh,etc,  Co.  v.  Van  Houten, 

48  Ind.  90,  177 

v.  Williams.  74  Ind.  462, 
Pitzer  v.  Indian  c,  Co.,  So 

Ind.  569,     625,  686,  692,  714, 

Pixlev  v.  Van  No-tern,  100  Ind. 34, 
Place  v.  Minster,  65  N.  V.  S9, 
Plainfield  v.  Plainfield,  67  Wis.  52;, 
Plank    v.  Jackson   (Ind.},  27  N .  E. 

Rep.  1 117, 
Plant  v.  Edwards,  85  Ind.  588, 
Platner  v.  Platner,  7S  N.  Y.  90, 
Planter's   Bank   v.   Neely,   7    How. 

( Miss.)  So, 
Planters  Ins.    Co.    v.    Cramer,    47 

Mis-.  200,  14,  20, 

Piatt  v.  Chicago,  etc., Co.,  74  la.  127 

v.  Continental  Ins.  Co.,  62  Yt. 

166,  666, 

v.  Manning,  34  Fed.  Rep.  S17, 

Platter  v.  Board,  103  Ind.  360.     62, 

119,  526,625, 

Pleasant  v.  State,  15  Ark.  624, 

Pleasants  v.Fant,  22  Wall.  116.  416. 

643- 
v.  Ycvav.etcCo..  42  Ind.301.  S 
Pledger  v.  State,  77  Ga.  242, 
I'leyte   v.  l'leyte,  15  Col.  44,  125. 
Plummer  v.  Mold,  22  Minn.  1, 
Plunkett   v.   Minneapolis,  etc.,  Co., 

71)  Wis.    222. 
Plymouth,  City    of,   v.   Fields,    125 

Ind.  :,2^ 
Pochelu   v.  Catonnet,  40  La.  Ann. 

327. 
Poindexter  v.  Greenhow,S4  \  a.  441. 

v.  Greenhow,  114  U.  S.  270, 
Pointer  v.  State,  S9  Ind.  255, 
Poland  v.  Miller.  95  Ind.  3S7, 
Polin  v.  State.  14  Neb.  540, 
Pomeroy    v.     Baddeley,     Ryan    & 

Moody,  430, 
Pollard  v.  King,  63  111.  36, 
Pollard  v.  Wegener,  13  Wis.  569, 
Pollers  v.  Black  River,  etc.,  Co..  113 

U.  S.  81, 

v.  Swope.  4  Ind.  217. 
Ponca,  Yillage  of,  v.  Crawford,   iS 


373 

"  I 
640 

4" 


Neb. 


;i, 


Poole  v.  Chicago,  etc.,  Co.,  2  Mc- 

Crary.  251, 

v.  Fluger,  1 1  Pet.  1S5, 
Poorman  v.  Mills,  43  Cal.  323. 
Pope  v.  Dinsmore,  8  Abb.  Pr.  429. 
Poppenhusen    v.    Seeley,  41    Barb. 

450. 
Porche  v.  La  Blanche,  12  La.  Ann. 

778, 


45 

160 

.63 

6S2 
630 

215, 

686 

480, 

7"- 
;.  86 
547 
177 
635 

634 

7.5S 

438 

672 

57" 
744 

66S 

700 
620 

; 
479 

4"7 
337 

- 


TABLE  OF  CASES. 


I  A\  /.  fences  a 
P  iree's    Succession.    27    La.    Ann. 

599 
Port  v.  Russell.  36  End.  DO,  759 

Porter  \.   Brackenridg<  .    -   Blackf. 

\ .  Choen,  60  Ind.  33S,   469,  623,  760, 

7s'' 
\ .  Foley,  21  How.  393, 
\.  Grimsley,  98  N.  C.  550 
v.  Hollow av.  43  Ind.  35, 
v.  Parker.  6  Tex.  23, 
v.  Pierce,  120  N.  Y.  217, 
v.  Purdy,  29  X.  Y.  106, 
v.  Rummery,  10  Mass.  64, 
\ .  State,  2  Ind.  435, 


47 

4S3 
102 

334 
103 
286 
13- 
25°.  53s-  579- 
669 

v.  Throop,  47  Mich.  313.  617 

v.  Waltz,  10S  Ind.  40,  5S0,  686 

v.  Western,  etc.,  Co.,  97  N.  66,  402 

Portis  v.  State,  27  Ark.  360,  579 

Portland  Co.  v.  United  States,   15 

Wall.  1,  369 

Portoues   v.   Holmes,   33   111.  App. 

312,  7-9 

Poseyville,  Town  of,  v.  Lewis,  126 

I  nil.  So,  7o7 

Po  t  \ .  Losey,  1 1 1  Ind.  7;.  327 

v.  Manhattan    Ry.    Co.,  125  N. 
Y.697,  r    729 

Poteet  v.  Count  v   Cominrs.,  30  W. 

Va.  58,  438,  754 

Potter  v.  Chicago,  etc.,  Co.,  22  Wis. 

615,  485 

v.  McCormack,  127  Ind.  439.      719 

v.  Merchants'   ISank,   28    N.  V. 

641,  670 

v.  Owens,  iS  Ind.  3S3,  62S 

v.  Smith,  36  Ind.  231,  597 

Potts  v.  Felton,  70  Ind.  166,        401,  789 

Pouder  v.  Tate,  96  Ind.  330,  81 

Poullain  v.  Poulfain,  79  Ga.  11,  7S2 

Pounds  v.  Chatham,  96  Ind.  342.  82 

Powell  v.  Ashlock.  21  111.  App.  176,  666 

v.  Augusta,  etc.,  Co.,  77  Ga.  192,  739 

v.  Bunger,  91  Ind.  6  \,  171 

v.  Jopling,  2  Jones  L.  400,  517 

v.  Powell.  104  Ind.  [8,      217,  647,  668 

v.  State,  13  Tex.  App.  244,  53S 

\ .  Sturtevant,  85  Ala.  243,  269 

v.  Waldron,  89  N.  Y.  32S,  4)4 

rs  \.  Evans,  72  Ind.  23,  775 

\ .  Fletcher,  84  Ind.  154,       687,  712 

v.Johnson,  86  Ind.  29S,  728 

V.  'Mitchell,  77  Me.  361,  740 

v.  Nesbit,  127  Ind.  497,  71 

v.  New  Haven,  120  Ind.  185,         274 

v.    Provident     Institution,    122 

Ma--,.    |  1  j,  I90 

v.  State,  87  Ind.  144.     167,  247,  251, 

252,  256,  368,  375,  674,  767 


re  to  Pages.\ 

Powers  v.  Yonkers,  114  X.  Y.  [45,  7^ 
Pracht  v.  Whittridge,  44  Kan.  710.  7^7 
Prat  her  v.  Ramho,  I   Blackf.  189,       C46, 

/35 

Pratt  v.  Allen,  95  Ind.  404,  251,  760 

v.  Burhans.  47  N.  W.  Rep.  1064,  345 

v.  Kendig,  128  111.  293,  44 

v.  Rice.  7  Nev.  123,  163 

v.  Western   Stage    Co.,  26    la. 

241,  210,  330 

Pray  v.  Wasdell,  146  Mass.  324,         307 

Pregnall  v.  Miller.  26  S.  C.  600,         447 

Prentice  v.  Kimball,  19  111.  319,         604 

v.  Rice.  2  Doug.  (  Mich.)  296,        6S 

Prentiss  v.  Paisley,  25  Fla.  927,        601 

Presbury  v.  Com..  9    Dana,  203,  528 

President,    etc.,    v.     Hamilton,    34 

Ind.  506,  592 

Pressley  v.  Harrison.  102   Ind.  14,     217 

v.  Lamb,  105  Ind.  171,  So 

Preston  v.  Fryer,  38  Md.  221,  274 

v.  Sanford,  21  Ind.  156,        525,  678 

v.  Wright,  60  la.  351,  677 

Preszinger  v.  Harness,  114  Ind.  491,  2S5 

Price  v.  Baker,  41  Ind.  570,         150,  264 

v.  Brown,  98  N.  Y.  3SS,  661 

v.  Commonwealth,  77  Ya.  393,   731 

v.  Johnson  County,  15  Mo.  433,  577 

v.  State,  74  Ind.  553,  241,  243 

Priddy  v.  Dodd.  4  Ind.  84,  296,  534,683 

Pride  v.  Wormwood,  27  la.  257,  523 

Priest  v.  State,  68  Ind.  569,  619 

Prince  v.  Bates,  19  Ala.  105,  133 

Princeton  v.  Manck,  35  Ind.  51,  62 

Princeton,  School  Town  of,  v.  Geb- 


hart,  61   Ind.  1S7, 


766 


Prindle  v.  Campbell,  7  Mackey,  59S,  738 
Pringle  v.  Leverich,  97  N.  Y.  181,  657 
Proctor  v.  De  Camp,  83  Ind.  559,  622 
v.  Owens,  18  Ind.  21,  y~\ 

Prootus  v.  Holmes,  33  111.  App.  312,  554 
Protector.  The,  11   Wall.  82,  137 

Prout  v.  Berry,  2  Gill.  (Md.)  1  17.  303 
Providence,  etc.,  Co.  v.  Goodyear, 

6  Wall.  153,  96 

v.  Martin,  32  Md.  310,  657,  661 

Providence  Rubber    Co.  v.   Good- 

year,  9  Wall.  7SS,  451 

Providence- Washington  Ins.  Co.  v. 

Wager,  37  Fed.  Rep.  59,  20S 

Provines  v.  Heaston,  67  Ind.4S2,  6S9 
Pruitt   v.    Edinburg,   etc.,    Co.,   71 

Ind.  2  1 ).  261 

Pryce  v.  Security  Ins.  Co.,  29  Wis. 

270,  481 

Pudney  v.  Burkhart,  62  Ind.  179.  635 
Puett  v.  Beard,  S6  Ind.  104,        394,  67S, 

686.  689 
Pugh  v.  Calloway,  10  Ohio  St.  4S8,     54 


TABLE  OF  CASES. 


Referent  ■  -  are  to  Pag<  ■>.  ] 


Pulliam  v.  Christian,  6  How.  209,       74 
v.  Mendenhall,  1 20  I  nd.  279,  626,  656 
Pulte   v.  Wayne  Circuit    fudge,  47 

Mich.  646,  325 

Purdue  v.  Stevenson,  54  End.  l6l,      393, 

397 
Purdy  v.  Rahl  (Cal.),  21  Pac.  Rep. 

,   971.  3S3 

Purple  v.  Harrington,  119  Ind.  164,   637 
Tut  nam  v.  Boyer,  140  Mass.  235,        20S. 

3l8»449 

v.  Hannibal,  etc.,  Co.,  22   Mo. 

App.  589,  789 

v.  Lewis,  1  Fla.  455.  7; 

v.  Tennyson,  ;o  Ind.  456,  56  j 

v.  Wise!  1  Hill,  234,  587 

Pyles  v.  Adams,  97  Ind.  605,  229 


a 

Qualter  v.  State,  120  Ind.  92,      103,  2^5 
(Juan  Wo  Chung  v.  Laumeister,  83 

Cal.  384,  439,  496 

Quarl  v.  Abbett,  102  Ind.  2^3,  146, 

148,154,285,418 
Quebec  Bank  v.  Carroll  (S.  1).),  44 

X.  W.  Rep.  723.  65 

Queen  v.   Buckinghamshire,    El.   & 
B.260,  128 

v.  Charlesworth,  1  B.  &  S.  460,  541 
v.  Eastern  Counties  Ry.   Co., 
10  Ad.  .V  El.  531,  433 

v.  Hepburn,  7  Cranch.  290,  527 

v.  Martin  L.  R.,  1  Cr.  C.  Res. 

3"S'  T  •  ,  ^  539 

v.  Liverpool,   15  Q^B.  (X.  S.) 

1070,  12S 

v.  Lord's  Commr's,  etc.,  10  A. 

&  E.  179,  435 

v.  Lord  Stewart  ot  Old  Manor 

Hall,  10  A.  &  E.  24S,  435 

Queen  Ins.  Co.  v.  Studebaker,  etc., 

Co.,  117  Ind.  416,  279,  391,  738 

Quick  v.  Brenner,  101  Ind.  230.  -74,712 

v.  State,  73  Ind.  1  17.  241 

Quill  v.  Gallivan,  108  Ind.  235,  296, 

595,  716,  751,  768 

Quimbv  v.  Bovd,  S  Col.  194,  637 

v.  Bovd,  [28  U.  S.   p\  41S 

v.    Hopping    (N.    1.  .    19    Atl. 

Rep.  193,  7S 

v.  Hopping,  52  N.J.  L.  117.  46 

Quirk  v.  Clark,  7  Mont.  31,  636 

R 

Rabb  v.  Graham,  43  Ind.  1,  131,  360 

Rabun  County  v.  1  labersham  Coun- 
ty, 79  Ga.  248,  |i8 
Racer  v.  Baker,  113  Ind.  177, 


Radcliffv.  Radford,96  Ind.  ^2,        6(t 
Rade,  In  re,  9  N.  Y.  Supp.  812,  1  5 

Radford  v.  Folsom,  125  I  .  S.  725,  9: 
Ragan  v.  Cuyler,  24  Ga.  397,  (96 

v.  Haynes,  10  Ind.  3 (S.  (j.. 

Ragsdale  v.  Matthew-.  93  Ind.  5S9,  791 
Rahm  v.  Deig,  121  In'd.  2S3,       211 
Railton  v.  Gander,  12'.  Ill,  . 
Railroad  Co.  v.  Bradlevs,  7   Wall. 
575, 
v.  Fraloff,  100  U.  S.  24,         416,  645 
v.  Gibbes,  24  So.  Car.  60,  410 

v.  Harris,  7   Wall.  ^74,  337 

v.  Howard,  7  Wall.  392,  6ot 

v.Johnson,  15  Wall.  8,  132 

v.  Koontz,  104  U.  S.  5,  631 

v.  Mississippi,  102  U.  S.  135,      631 
v.  Morey,  47  Ohio  St.  207,  030 

\ .  Pratt.  22  Wall.  123.  57  ; 

v.  Schute,  100  U.  S.  644,      341,  342 
v.  Swasey,  2^  Wall.  405,  68 

v.  Winslow,  66  111.  219,  657 

Railsback  v.  Greve,  49  Ind.  271,  $]7 

v.  Greve,  5S  Ind.  72,  307,  312 

v.  Walke,  Si  Ind.  409,  167.  696 

Railway  Co.,   Ex   parte,   103   U.   S. 

794< 
Railway  Co.,  Ex  parte,  101    U.   S 

7">  43 : 

Railway  Co.  v.  McCarthy,  96  U.  S 

258, 
Rainey  v.  State,  53  Ind.  27S, 
Rainforth  v.  People,  61  111.  365, 
Rafif  v.  Baldwin,  29  Ind.  16, 
Ralston  v.  Moore.  105  Ind.  243,  562.  703 
Ramsey  v.  Bush,  27  la.  17, 
Randall's  Case.  2   Mod.3oS,  272 

Randall  v.  Hunter.  69  Cal.  So,  122 

Randies  v.  Randies,  63  Ind.  93,  ^24 

v.  Randies,  67  Ind.  434,        33* 
Randleman,  etc.,  Co.  v.  Simmon;. 

07  N.  C.  89, 
Randolph,  Ex  parte, 2  Brock.  447,    9.  2S 
Randolph  v.  Hahn,  33  S.  C.609,        446 
v.   Lampkin   (Kv.),    14   S.  W. 

Rep.  538,  '   '  7S7 

v.  Mauck,  7S  Mo.  40S,  9I 

Random  v.  Toby.  11  How.  493,  2^2 

Rankin  v.  Central,  etc.,  Co.,  73  Cal. 

96,  114 

Ransom  v.  Henderson.  114  111.  ;2S,    271 
Ranv  v.  Governor,  4  Blackf.  2,  :^( 

Rapp  v.  Kester,  125  Ind.  70.       I  6 

v.  Reehling,  122  Ind.  255, 
Rardin  \.  Walpole,  j8  Ind.  146,  204,  751 
Rariden  v.  Rariden  (Ind.),  28  X.  E. 

Rep.  701. 
Rasor  \.  Quals,  4  Blackf.  2S6, 
Rater  v.  State.  49  Ind.  507, 
Rathburn  v.  Wheeler.  29  Ind.  60I,     748 


439 
439 

1 28 

79- 
619 
2S1 


I 


TABLE  OF  CASES 


[References  a 

Ratliffv.  Baldwin.  29  Ind.  16,  179 

\ .  Stretch,  117  Ind.  526, 

Ratliffe  v.  Huntly.  5  Ired.  L.  545,  701 
Rauber  v.  Sundback  (S.  Dak.),  46 

N.  W.  Rep.  927,  643 

Rauck  v.  Stale.  110  Ind.  3S4.  255 

Rawlins  v.  Fuller,  31  Ind.  255,  597 

Rawson  v.  Adams,  17  Johns.  130,  134 

Rav  \.  Detchon,  79  Ind.  56,  279 

\  .  Dunn,  3S  Ind.  230,  480 

\.  Law.  3  Cranch.  179.  134 

\.  Northup.  55  Wis.  39r>,  519 

v.  Rav.  1  Idaho  (X.  S.),  705,  326 

v.  Rowley,  1  Hun.  614.  (72 

v.  Thompson,  26  Mo.  App.  431,  790 

Rayle  v.  Indianapolis,  etc.,  Co..  40- 

Ind. 347,  S7 
Raymond  v.  Butterworth,  139  Mass. 
471.  271 
v.  Richmond,  76 N.  Y.  106,    210,44s 
v.  Simonson,  4  Blackt.  77,  5S9 
v.  Thexton,  7  Mont.  299,  7S9 
Rea  v.  Missouri,  17  Wall.  532.  536 
v.  Scully,  76  la.  343,  610 
Read  v.  Cambridge.  124  Mass.  567,  619 
v.  Gooding,  20  Fla.  773,  65 
v.  Nichols,  11S  N.  Y.  224.  747 
Ready  v.  Shamokin,  137  Pa.  St.  92,  544 
Reagan  v.  Copeland,  7S  Tex.  551,  265 
R  eal  Del  Monte,  etc.,  Co. v.  Thomp- 
son, 22  Cal.  542,  663 
Reams  v.  State,  23  Ind.  m,  40S 
Record  v.  Ketcham,  76  Ind.  4S2,  524 
Rector  v.  Rotton,  3  Neb.  171.  73 
Reddington  v.  Hamilton,  S  Blackf. 

62,  665 
Redelsheimer  v.   Miller,    107    Ind. 

485,  707 

Redinbo  v.  Fretz,  99  Ind.  45S,    163.  693 

Redman  v.  State.  28  Ind.  205,     533,  534 

v.Taylor,  3  Ind.  144.  524 

Red    River,  etc.,  Bank  v.  Freeman 

(S.  D.),  46  N.  W.  Rep.  36.  65 

Reed  v.  Bagley,  24  Neb.  23-,  66S 

v.  Cates,  11   Col.  527.  630 
v.  Chicago,   etc..   Co.,  71   Wis. 

399>  5lS 

v.  Creditors,  37  La.  Ann.  907,     20^- 
v.  Dongan,  54  Ind.  306,  562 

v.  Firtton,  63  Ind.  2SS,  599,  601 

v.  Garr,  59  Ind.  299.  599 

\.  Higgins,'86  Ind.  143,  68) 

v.  Hubbard,  1   Gr.  (la.)  153.  770 

v.  Reed,  44  Ind.  429,  64,  229 

\.  Sering,  7  Blackf!  135  45,  50 

v.  Spayde,  56  Ind.  394,  2S9.  7^; 

v.  Vaughan,  15  M<>.  137.  421 

v.  Worland,  64  Ind.  216,  7" 

Reeder  v.  Lander.  7  Bush.  598, 

v.  Machen,  57  Md.  56,  79 


re  to  Pagi  v 

v.  Maranda,  55  Ind.  239, 

v.  Maranda,  66  Ind.  4^5,      413, 

v.  Sayre,  70  N.  Y.  iSo, 
Rees  v.  City,  19  Wall.  107, 
Reese  v.  Beck,  9  Ind.  23S,      69,  229. 

v.  Smith,  95  N.  Y.  645, 

v.  State,  S  Ind   416, 
Reeves  v.  Andrews,  7  Ind.  207, 

v.  Plough,  41  Ind.  204,  624,  64S. 
Regan  v.  McMahan,  43  Cal.  626, 
Regenstein  v.  Pearlstein,  30   S.  C. 

192, 
Regina  v.  Bertrand,   10  Cox  C.  C. 
61S, 

v.  Murphy  L.  R..  2  O^C.  535, 
Reid  v.  Houston,  49  Ind.  1S1,    171, 

v.  Morton,  119  111.  11S, 
Reilev  v.  Burton,  71  Ind.  11S, 
Reilly  v.  Bader,  46  Minn.  212, 
Reineke  v.  Wur^ler,  77  Ind.  468, 
Reinhold  v.  State  (Ind.),  30  N.  E. 

Rep.  306, 
Reitan  v.  Goebel,  35  Minn.  384, 
Reitz  v.  State,  33  Ind.  187, 
Remington  v.  Bailey,  13  Wis.  332, 
Removal  Cases,  100  U.  S.  457, 
Rencher  v.  Anderson,  93  N.  C.  105 

v.  Anderson,  95  N.  C.  20S, 
Renihan  v.  Wright,  125  Ind.  536, 
Renn  v.  Samos,  42  Tex.  104, 
Renner  v.  Ross,  m  Ind.  269, 
Rennick  v.  Chandler,  59  Ind.  354, 

Repath  v.  Walker,  13  Col.  109, 
Republic  Life  Ins.  Co.  v.  Swigert, 

(111.),  25  N.  E.  Rep.6So, 
Resolutions,    Irrigation.     In    re,  9 

Col.  620, 
Resolutions,  Senate,  In  re,  21  Pac. 

Rep.  470;  9  Col.  623, 
Respublica  v.  Clarkson,  1    Yeates 

(2d),  46, 

Rettig  v.  Newman,  99  Ind.  424, 
Reubel  v.  Preston,  5  East.  291, 
Reynes  v.  Dumont,  130  U.  S.354. 
Reynolds  v.  Baldwin,  93  Ind.  57, 

Reynolds  v.  Copeland,  71  Ind.  422, 
v.  Harris,  14  Cal.  667, 
v.  Hennesy    (R.     I.),    20 
Rep.  307. 

v.  Hosmer,  45  Cal.  616, 

v.  Lamsburv.  6  Hill.  534, 

v.  Rogers,  5  Ohio.  171, 

v.  Stansbury,  20  Ohio,  244. 

v.  State,  61  Ind.  392,      21; 

v.  State.  27  Neb.  90, 

v.  Sutlift.  71  la.  549, 

v.  United  States,  9S  L*.  S.  145 


495  • 
Atl. 


406, 


118 

505 

5-i 

5 

444 

146 

63 
3'- 
782 
109 

5^0 

231 

231 
17-. 
201 
178 
192 
619 
774 

662 
3>- 
533 
65S 

72 
,  8 
681 
604 

79 
114 

75. 
687 
620 

550 


4-  5 

435 
5-4 
286 
412 
616, 
640 
588 
497 

143 

495 
702 

50S 
670 
592 

545 

2^1 


TABLE  OF  CASES. 


[References  art  to  P 


7 


l  15 


Rex  v.  Congers,  8  (^  B.  981, 

v.Justices    "!'     Monmouth, 
Dowl.  &  R\ .  334, 

v.  Mansbey,  6  T.  R.  1  [9, 

v.  Peters,  "1  Burr.  568, 

v.  Wilkes,  4   Burr.  2527,       5 

v.  Young,  1  Burr.  556, 
Rhine  v.  Morris,  96  liul.  81, 
Rhode  Island  v.  Massachusetts,  u 
Pet.  657.  9 

v.  Massachusetts,  13  Pet.  23, 
Rhoades  v.  Delaney,  50  Ind.  46S, 
Rhodes  v.  Green,  36  Ind.  7.        535, 

v.  Mummery,  48  Ind.  216, 

v.  Piper.  4 j   Ind.  474, 

v.  Russell.  32  S.  C.5S5, 

V.  State.  [20   Ind.  1S9,  64S,    530 

Rhyne  v.  Guevara,  67  Miss.  139.  56 

Rials  v.  Powell  (Ga.),  9  S.  E.  Rep. 
61  -z. 


512 

5»3 
51- 
7-43-  765 


r,33 
156 
536 
401 

174 
646 


615 
5S9 
7>  709 
677 
33 
580 

314 


Rice  v.  Boyer,  10S  Ind.  472, 

v.  City  of  Evansville,  108  Ind 

v.  Cunningham,  29  Cal.  492, 

v.  Hall,  21  111.  App.  288, 

v.  Rice,  6  Ind.  100, 

v.  Rice,  13  liul.  5<>2, 

v.  State,  7  Ind.  332, 

v.  State.  [6  Ind.  298, 

v.  State,  3  Tex.  App.  451, 

v.  Turner,  72  Ind.  559, 

Rich  v.  Starbuck,  45  Ind.  310, 

Richev  v.  Bly,  115  Ind.  232, 

Richie  v.  State,  59  Ind.  121, 

Richards  v.  Bestor.  90  Ala.  3^2, 
v.  Nixon,  20  Pa.  St.  19, 
v.  Lake  Shore,  etc.,  Co.,  25  111. 
APP-  344.  124  HI.  516, 

Richardson  v.  Denison,  1  Aik.  (Vt.) 
210. 

v.  Green,  130  U.  S.  104,        124.    154 

v.  Houk,  45  Ind. 451,      70,  2^7.  72s. 

761 

v.  Jones,  r8  Ind.  240. 

V.  Pate.  93  Ind.  423, 

v.  Richardson,  S2  Mich.  305, 

v.  Richardson,  S3  Mich.  653, 

v.  Rogers,  37  Minn.  461, 

v.  Seybold,  76  Ind.  5S, 

v.  Snider,  72  Ind.  42^. 

v.  State,  55  Ind.  381, 

v.     St.    Joseph      Iron     Co.,     5 
Blackf.  146,  675, 

v.  Weare,  62  N.  H.  So, 

v.  Woodring,  74  la.  149, 
Richmond    v.    Atkinson,    58    Mich. 
413. 

v.  Tallmage,  16  Johns.  307, 
Richmond,    City    of,   v.  Davis,   103 
Ind. 449,  5i- 


5-7 
572 
287,  728 
169,  37S 
404 
7S6 

733 
616 


76s 


603 
150 

34o 

3lS 

97 

-79 

374 

683 
624 

401 

53S 
638 


Richmond  Streel  Rj  .  Co.  v.  Reed. 

83  Ind.  9, 
Richter  \ .  Koster,  \-  Ind  783 

Rickard  v .  State.  7  j  hid.  27;. 
Ricker  v.  Powell,  too  U.  S.  104, 
Ricketts  \.  Dorrell,  55  Ind.  470,         215 

\.  I  >orrell,  59  Ind.  427. 

v.  J  [arvey,  [06  I  nd 

v.  Spraker,  77  Ind.  371,        285.  517, 

590,591 

Ricketson  v.  Compton,  23  Cal.  636,  114 

Ridabock  v.  Levy,  8  Paige,  197,        315 

Ridenhour  v.  Kansas  City,  etc.,  Co., 

102  Mo.  270,  628 

Ridenour  v.  Beekman,  68  Ind.  236,  154, 

29--  36l>  443-  7*8 

v.  Miller,  83  Ind.  20S,  293.  718 

v.  Wherritt,  30  Ind.  485,  601 

Ridgeway  v.  Dearinger,  42  Ind.  157,  393 

Ridgway   v.   Ewbank,   2   Moody  & 

Rob.  217,  615 

Rield   v.  Evansville   Foundry,    104 

Ind.  70,  397,  398,  405,  550 

Rielay  v.  Whitcher,  is  End.  458, 
Rigg  v.  Parsons,  29  W.  Va.  ^22,  pi 

Riggenberg  v.    Hartinan,   102    Ind. 
,   387,  533 

Rigler  v.  Rigler,  120  Ind.  431.  1  ;s. 

287,  728 
Riggs  v.  Johnson   County.  6  Wall. 
166,  12.  440 

v.  Sterling.  60  Mich.  643,  536 

v.  Wilson,  30  So.  Car.  172.  610 

Rigsbee  v.  Bowles,  17  Ind.  167, 
Rikoffv.  Brown,  etc.,  Co.,  6S  Ind. 

3SS,  47,, 

Riley  v.  Mitchell.  38  Minn.  9.  3117 

v.  Murray,  S  End.  35  |.,  21 
v.  Schavt  acker,  50  I  nd.  -■ 
v.  State.  88  Ala.'  1 
v.  State,  95  Ind.  446,  25  | 

v.  Watson,  ib  Ind.  21 16,  6S9 

v.  Waugh,  8  Cush.  220,  346 

Rinehart  v.  Bowen,  44  Ind.  353,  85,  757 
v.  Vail,  103  Ind.  159.    219.  222,  22;. 

2  2'  >.   2  28 

Ring  v.    Mississippi    River   Bridge 

Co.,  57  Mo.  496,  311 

Ringenberger  v.  Hartman,  124  Ind. 

[86,  265,  345,  7SC 

Ringle  \ .  Bicknell,  32  Ind.  369,  637, 1  ^ 
v.  hirst  Nat. Bank,  107  Ind.  425, 790 
Rinker  v.  Bissell,  90  Ind.  37;.  597 

Rio  Grande,  The.  19  Wall.  178,     50,  79 
Rising  Sun.  etc.,  Co.  v. Conway,  7 

Ind.  1S7.  689 

Risser  v.  1  loyt,  53  Mich.  is;. 
Ritch  v.  Eichelberger,  13  Fla.  1 
Ritchmyer  v.  Ritchmyer,  50  Barb. 

55) 


CIV 


TABLE  OF  CASKS. 


R(  ferences  are  to  Pages.] 


Rivers  v.  Olmstead,  66  la.  1S6, 

Roanoke  v.  Karn,  So  Va.  34s 

Roback  v.  Powell,  56  End.  515,  404,  405 

Robb  v.  Ankeny,  4  Watts.  &  S.  128,  673 

Roberts.  Ex  parte,  15  Wall.  384,         439 

v.  Abbott,  127  Ind.  83,         595-  '"'» 

v.  Cooper,  20  1 low .  \'\-  49- 

v.  Evan  y8o,  587 

v.  Graham,  6  Wall.  578,      398,  405, 


v.  Johnstown    Bank, 
576,  ' 


60    Hun. 


79? 


v.  Lindley,  121  Ind.  56,  19,4751  7lS 


572 


769 

39.? 
6S8 

674 
691 

54i 
111 

-73' 
SS6 


v.  Nodwift,  S  Ind.  339. 
v.    Ogdensburg,    etc.,    Co.,    2t 
Hun. 
v.  Parrish,  17  Ore.  5S3, 
v.  Porter,  78  Ind.  130, 
v.  Smith.  34  Ind.  550, 
v.  State.  14  Ga.  S, 
V.  State.  S3  Ga".  166, 
v.  State,  ill   Ind.  340. 
v.  Taylor.  4  Port  (Ala.).  4:1. 
Robertson  v.  Caldwell,  9  Ind.  514. 

545    . 

v.  Cease,  97  U.  S.  646,         354,  47S 

v.  Davidson,  14  Minn.  554,  462 

v.  Davis.  14  Minn.  554,  335 

Robertson  v.  Edelhoff,  132  I'.  S.  614,  643 

v.  Garshwiler,  81  Ind.  463,  732,  781 

v.  Huffman,  92  Ind.  247,  504 

v.  Huffman,  101    Ind.  474.  480 

v.  O'Riley,  14  Col.  441, 

v.  Smith,  109  Intl.  71),  218,  392, 

v.  Smith  (Ind.).  2S   \.  E.  Rep. 

8S7)  306, 

v.  State.  109  Intl.  ;«).    5,  1  }.  122, 

v.  Van  Cleave   (Ind.),  26  N.E. 

Rep.  S99, 

Robbins  v.  Alton,  etc.,  Co.,  12  Mo. 

3S0, 

v.  Magee,  96  Ind.  174, 
v.  Neal,  10  la.  560, 
v.  Spencer,  121   Ind.  594, 
Robinson,  Ex  parte.   [9  Wall 
Robinson  v.  Anderson,  106 Ind.  1^2,  7^7. 

758 
v.  Brown.  7  (  I  ml.  365, 
v.  Bank,  iS  Ga.  65, 
v.  Board,  37   Ind.  332. 
v.  Ferry,  1 1  Conn.   |'  ". 
v.  Johnson,  61  Ind.  535, 
v.  Keith,  2;  [a.  321, 
v.  Magarity,  2S  111.  423, 
v.  Oceanic,  etc.,  Co.,  112  N.  Y 

3x5i 

v.  Rippey,  1 1 1  Ind.  1 12, 

V.  Robert-,  16  Fla.  I56, 
v.  Shanks,  1  [8  [nd.  1 :;. 
v.  Shatzley,  75  Ind.  ^61 , 


-7b 


«K, 


700, 

757. 


26: 


149 

444 

307 
735 

781 

7S8 
296 

OS  j 
615 

7 


146 
127 
1 1 1 
701 

75S 
411 

134 

444 

6"!0 


304 

56S,  610 

419 


567, 
748 

703 

7'7 
734 

789 

775 
480 

357 
7S6 

1  So 

79 

78S 

467 

2S6 

780 

76 

176 

54 
670 

611 
670 
J79 
52 
647 

479 

5S 

691 

746, 
762 

v.  Maxwell,  4  Ind.  243,  301 

v.  Overton,  S7  Ind.  410,         2S2,  582 

v.  Rogers,  78  Ga.  6SS,  297 

v.  Rogers,  46  Ind.  1,  7^4 

v.  Rogers,  14  Wend.  131,  737 

v.  Smith.  17  Ind.  323,  635 

v.  Union, etc.,  Co.,  in  Ind.  343,  32. 

-15.  -74,  S32 

v.  Weil.  12  Wis.  664,  4S6 

Rohlring  v.  Lightbody,  36  Kan.  500,  612 

Rohn  v.  Harris,  ^1    111.  App.  26, 

Rolf  v.  Pillond,  16  Neb.  21, 

Rolfe  v.  Rumford,  66  Me.  564. 

Rollins  v.  State,  62  Ind.  46,        570, 


Robinson  v.  Snyder,  74  Ind.  no, 

603,  712,  724, 
v.  State,  1  Lea.  673. 
v.  Suter.  15   Mo.  App.  599, 
Robinius  v.  Lister,  30  Ind.  142, 
Robinson,  etc.,  Works  v.  Chandler, 

56  Ind.  575, 
Roblin  v.  Gagy,  35  111.  App.  537, 
Rohv  v.  Pipher,  tog  Ind.  345, 
Rochester  v.  Levering,  104  Ind.  ;'.j. 
Rochester.     School     Town      of,    v. 

Shaw,  100  Ind.  <>^-. 

Rockland  Water  Co.  v.   Pillsbury, 

60  Me.  420, 
Rodd  v.  Heartt,  17  Wall.  354, 
Rodefer  v.  Fletcher, 89  Ind.  563, 
Rodenwald  v.  Edwards,  77  Ind.  221, 
Roderigras  v.  East  River, etc.,  Co., 

63  X.  V.  460, 
Rodgers  v.  Hoenig,  46  Wis.  361, 

v.  Russell,  I  I   Neb.  361, 

Rodman  v.  Harvey,  102  N.  C.  1, 

v.  Nathan,  45  Mich.  607, 

v.  Rodman,  54  Ind.  444, 

Roe  v.  Kansas  City,  etc.,  Co.,  100 

Mo.  190, 
Rogan  v.  Haynes,  10  I1UI.34S, 
Rogers  v.  Abbott,  37  Ind.  138, 
v.  Beach,  1 15  Ind.  413, 
v.  Beauchamp,  102  Ind.  33, 
v.  Gooding,  2  Mass.  475, 
v.  Goodwin,  2  Man.  475, 
v.  Leyden,  127  Ind.  50, 
v.  The  Marshall,  1  Wall.  644, 


Roloson  v.  Herr,  14  Ind.  539, 
Roman  v.  Meyer,  84  Ind.  390, 
Romaine  v.  State,  7  Ind.  63, 

v.  Craelle,  So  Cal.  626, 
Rooke's  Case.  3  Coke   Rep.  100  a, 
Rooney  v.  Milwaukee,  etc.,  Co.,  65 
Wis.  397,  658, 

Root  v.  Stevenson,  24  Ind.  115, 
Roots  v.  Tyner,  10  Ind.  S7/ 


444 
614 

623 
578, 
690 

75S 

571 
250 
109 

5" 

659 
589 
691 


TABLE  OF  CASES. 


CV 


A".  / 
Rorcr  Iron  Work>  v.  Tl  >ut,  83  Ya. 

610 


397. 
Rosa  v.  Prather,  [03  [nd,  191 
Rose  v.  Allison,  \i  [nd.  276, 
v.  Baker,  99  N.  C.  323, 
v.  Comstock,  17  Ind.  1, 
v.  Duncan.  43  Ind.  51  J, 
v.  Garrett,  gi  Mo.  65, 
v.  Tyrrell,  25  Wis. 
Rosenbaum  v.  McThomas,  34  Ind 
33 1 1 


10S 
378 
'32 

687,  748 
92 


79° 


Rosenberg  v.  Frank.  58  Cal.  387, 
Rosenfield  v.  Condict,  <\  \  Tex 

v.  Goldsmith   (Ky.),   12    S.  W. 
Rep.  928, 
Rosenthal  v.  Chisum,  1  N.  M.  637, 
Rosenweig  v.  Frazer,  S2   Ind.  342. 
Ross  v.  Citizens'  Ins.  Co.,  7    Mo. 
App.  575. 

v.  Davis,  97  Ind.  79, 

v.  McGowen,  5S  Tex.  603, 

v.  Murphy,  55  Mo.  372, 

v.  Swiggett,  [6  Ind.  433, 

v.  Thompson,  7S  Ind.  90, 
Ri  isser  v.  Barnes,  16  Ind.  502, 

v.  McColly,  9  Ind.  587, 
Rotach  v.  McCarty,  102  Ind.  461 
Rotan  v.  Stoeber.  Si  Ind.  14^, 
Roth  v.  Palmer,  27  Barb.  652, 
Rothrock  v.  Perkinson,  61  Ind.  39,   167, 

615 
Roulain  v.  McDowall,  1  Bay.  490,  310 
Round  v.  State,  14  Ind.  493,      281,  66:;, 

767,  769 
Roush  v.  Emerick,  So  Ind.  551,  403 

Rousseau  v.  Corey,  62  Ind.  250,  203,  777 


4S1 
7V 
7§S 

4'4 

26 

469 

6 

312 
561 

5S0 

534 
268 

569 
587 


60S 

7'") 
370 

611 


626 

599 
124 

|68,  379 


Rout  v.  King,  103  Ind.  , 

v.  Ninde,  in  Ind.  597,     S,  533 
v.  Woods,  67  Ind.  319, 

Routh  v.  Agricultural  Bank,  12  S 

&  M.  161, 
Rowe  v.  Beckett,  30  Ind.  154,    21^ 

v.  Peabody,  102  [nd.  iws. 
Rowell  v.  Klein.  44  Ind.  290, 
Roy  v.  Haviland,  12  Ind.  364, 

v.  Roue.  90  Ind.  54, 

v.  State.  58  Ind.  378, 

v.  Union,  etc.,  Co.  (Wyo.),  26 
Pac.  Rep.  996,  5  (.6,  654,  761 

Rozier  v.  Williams,  92  111.  1S7,  ioS 

Rubey  v.  Shaw,  51  Mo.  116,  64 

Rubush  v.  State.  112  Ind.  107,    408,  668 
Ruch  v.  Biery,  no  Ind.  444.  226 

Ruckman  v.  Allwood,  41  111.  1S4,      349 

v.  Demarest,  no  U.  S.  400,  11^ 
Rudd  v.  Wooltolk,  4  Bush.  555,  291 
Ruddell  v.  Tyner,  s7  Ind.  529,  640,  64^ 
Rudolph  v.  Vanderlen,92  Ind.  J4,  622 
RutY  v.  Ruff,  85  Ind.  431,  640 


<//-.  t,>  Pages.} 
Ruffing  v.  Tilton,  12  Inn.  ; 

Ruffner  v.  Hill,  31  W.  Va 
Ruger  v.  Burgan,  10  Ind.  451, 
Rule  v.  Gumaer(Col.),2i  Pac.  Rep. 

905, 
Rumsey,  etc.,  Co.  v.  Baker.  33  Mo. 

App."  239, 
Rundell  v.  Kalbfus,  125  Pa.  St.  123, 
Rundles  v.  J  [nd.  35,        27'.. 

Runnels  v.  kavlor.  95  Ind.  50  5, 
Runnells  v.  Moffat,  73  Mich.'  iSS, 
Runnion  v.  Crane.  4  Blackf.  )• 
Runyon  v.  Bennett.  4  Dana.  598, 

v.  Hale.  10  Ark.  476, 
Rupert  v.  Martz,  Ii6  Ind.  72. 
Ruschaupt    v.    Carpenter.    63    Ind. 

359-  207,213,315,317, 

Rush  v.  Gray,  74  Ind.  231,  220. 

v.  French.  1  Ariz.  99,    729.  738, 

v.Thompson,  112  Ind.  [58, 

53'  ■ 
Rushteldt  v.  Shave.  37  Minn.  282, 
Rushville  Gas  Co.  v.  Rushville,  121 

Ind.  206, 
Russell  v.  Bartlett,  9  Wis.  556, 
v.  Branham.  8  Blackf.  277. 
v.  Clark.  7  Cranch.  I  1 1, 
v.  Harrison,  49  Ind.  97, 
v.  Lathrop,  122  Mass.  300, 
v.  Loring,  3  Allen.  121, 
v.  Nail,  79  Tex.  664, 
v.  Rosenbaum,  24  Neb.  j 
Rutherford  v.  Fisher.  4  Dall.  22. 
Ryan  v.  Bindley.  1   Wall.  66, 
v.  Burkam.  42  Ind.  507, 
v.  Couch,  66  Ala.  244. 
v.  Hurley,  1  19  Ind.  1 15, 


86 

iSi 

77- 
520 

334 

2S2 

33o 


v.  Kock,  1  7  Wall.  19, 
v.  Rockford    Ins.  *. 
611, 
Ryman  v.  Clark.  4  Blackf.  520. 
Ryman  v.  Crawford,  86  Ind.  2<> 


266, 
Wis. 


75°. 


S.  S.  Osborne.  The.  105  U.  S.  447, 
Sacramento  Savings  Bank  v.  Spen- 
cer, 53  Cal.  737, 
Sadler  v.  Sadler.  [6  Ark.  628, 

er  \ .  Wynn,  ^s  Ind    - 
Sage  v.  Brown,  34  Ind.  464, 

v.  Central  R.  Co.,  03  U.  S.  412, 

■  .  [(  \\  a,  1  v..  Co.,  93  U.  S.  412, 
v.  Railroad  Co.,  >  1"    I      S.  712. 
v.  State.  127  [nd.   1  5.      529,  578, 
Salander  v.  Lockwood,  66  Ind.  2s;. 


740 

404. 
60S 

266 

325 

73o 
604 

6S 

792 

412 

73 

51 

625 
101 
57o, 
765 


208 

672 

337 
116 


CV1 


TABLE   OF  CASES. 


^oS, 
(U. 

62, 


69.7 


Saline  Co..  In  re.  45  Mo.  52, 
Salisbury  v.  Howe,  S7  N.  V.  128, 

v.  Bartleson,  39  Minn.    , 
Saltes  v.  Butler,  27  X.  V.  1 
Salmon  v.  Pierson,  S  Md.  297. 
Saltsburg  Gas  Co.  v.  Borough,  etc., 

1  ;S  Pa.  St.  250, 
Saltmarsh  v.  Tuthill,  12  How.  387, 
Sammons  v.  Newman,  27  Ind. 
Sample  v.  State,  104  Ind.  2S9, 
Sampson    v.    Welsh,  24    How. 

S.)  207, 

Samuels  v.  Blanchard,  25  "\\  is.  329. 
Sanborn  v.  Webster.  2  Minn.  323, 
Sanchez  v.  Roach.  5    Cal.  24S,     115. 

ler,etc,  Co.  v.  Yesler  (Wash.), 
27  Pac.  Rep.  269, 
Sanders  v.  Farrell,  83  Ind.  28, 

v.Johnson,  6  Blackf.  50, 

v.  Loy,  45  Inch  229, 

v.  Low  6.1  Ind.  29S, 

v.  Peck,  30  111.  App.  23S, 

v.  Peck.  131  111.  407. 

v.  Reister,  1  Dak.  151, 

v.  Sanders.  30  So.  Car.  207, 

v.  Scott,  6S  Inch  130, 

v.  State.  85  Ind.  316, 

v.  Wakefield,  41  Kan.  11, 
Sandford  v.  Sandford,  58  N.  Y. 

v.  Tucker.  ^4  Inch  219, 
Sandford  Tool  Co.  v.  Mullen,  1  Inch 

App.  204, 
San   Diego,   etc..  Co.  v.  Neale,  SS 
Cal.  50,  41 5-  5-''- 

Sandon  v.  Proctor.  7  B.  &  C.  Soo, 
Sands  v.  Woods,  1  la.  263, 
San  Francisco,  Citv  of,  v.  Itscll,  133 

U.  S,  65, 
Sankey  v.  Sankey,  S  Ala.  601, 
San  Mateo  v.   Southern   Pacific   R. 
R.  Co.,  116  U.  S.  13S,  125, 

Sa'nxay  v.  Hunger,  42  Ind.  44,     277, 
Sargent  v.  Cunningham  (Cal.),  25 
Pac.  Rep.  677. 

v.  Flaid,  90  Inch  501, 

v.  Roberts,  1   Pick.  337, 

v.  State.  96  Ind.  63, 
Sassengut  v.  Posey, 67  Ind.  408, 
Sater  v.  State.  56  Ind.  378, 
rlee  v.  Bliss,  36  Cal.  4S9, 
r  V.  (  li'ill'm.  67  Mo.  654, 
Sauls  v.  Freeman  (Fla.),  4  So.  Rep. 

577- 
Saunders  v.  Heaton.  12   Ind.  20, 

v.  Waggoner,  82  Ya.  316, 
Savage  v.  Maresch,  3  Wash.  T\ .  259. 

v.  State,  19  Fla.  561, 
Savannah  v.  Jessup,  [06  U.  S.  563, 
Savings,  etc.,  Co.  v.  I  lorton,  63  Cal. 
310. 


9 

4i3 

675 

96 

114 

591 
456 
306 

-53 

134 

4h3 
4S3 
140 


rr  to  Pagi  S.] 

Sawyer,  Ex  parte.  21  Wall.  235,         439 
Sawyer  v.  Chambers, 43  Barb.  622,    '17. 

v.  Chicago,  etc.,   Co.,  22  Wis. 
402.  570 

Sawyer  v.  Sargent.  65   Cal.  259.         7S5 
Sayers  v.  First  Nat.  Bank,  S9  Ind. 

-~3°>  5-3 

Sayre  v.  Sayre,  17  X.J.  Eq.  349,       604 

Saxon  v.  Pence,  1  Bailey (S.  C),  66,  729 

v.  State.  116  Inch  6,        100,  176,   775 

Scarborough  v.  Pargond,  10S  U.  S. 


a, 

o 

5*7 

/O.  7S3 

69 

490 

490 

57i 
616 

37° 
6,  231 

518 
67,  112 

169 


647 

550 
533 
77o 

l7 
483 

444 
752 

736 
12S 
619 

2  48 

774 
679 
167 
311 

469 

7&7 

78 
266 

294 

"4 

96 


567, 


104 

7- 

4S3 

674 

140 


Scarlett  v.  Snodgrass,  92  Inch  262. 
Schafer  v.  Smith,  6S  Ind.  226, 

v.  State,  49  Ind. 460, 
Schartzer  v.  Love.  40  Cal.  93, 
Schee  v.  McQuillken,  59  Ind.  269,   399, 

616 

Scheible  v.  Slagle,  89  Inch  323.  334.  401. 

462,  5S0,  7SS 

v.  Lav,  615  Ind.  332,  524 

Schellhous  v.  Ball,  29  Cal.  605,  7SS 

Scherer  v.  Ingerman,  no  Ind.  42S,  220 
Schiffer  v.  Adams,  13  Coh  572,  120,  557 
Schindler  v.  Westover,  99  Inch  395,  74S 
Schirmeier  v.  Baecker,  20  111.  App. 

373.  TT         675 

Schlemmer  v.  Myerstem,  19  How. 

Pr.  412,  733 

Schlicht  v.  State,  56  Inch  173,    254.  7S2 

Schlotter  v.  State,  127  Ind.  493,         622 

Schlungger  v.  State,  113  Inch  295.    250, 

291,  647,  668,  669 

Schmied  v.  Keeney,  72  Ind.  309,        630 

Schmidt  v.  Colley,  29  Ind.  120,  707 

v.Gilson,  14  Wis.  514,  4S1 

v.  Wright,  8S  Ind.  56,  149,  37S 

Schmitt  v.  Schmitt,  32  Minn.  130,     7S4 

Schmitz  v.  Lauferty,  29  Ind.  400,     237. 

7hv  77S 
Schmohl  v.  Fusco,  13  N.  Y.  Supp. 

583,  444 

Schmurr  v.  Stuts,  119  Inch  429,  791 

Schnartzer  v.  Love,  40  Cal.  93,  115 

Schnewind  v.  Hacket,  54  Inch  24S,  162 
Schnied  v.  Keeney,  72  Inch  309,  217 
Schnitzins  v.  Bailey  (N.  J.),'iS  Ath 

Rep.  192,  66 

Schnurr  v.  Stults,  119  Ind.  429,  70S,  791 
Schoefner  v.  State,  3  Wis.  S23,  578 

Scholey  v.  Halsey,  72  X.  Y.  37S,  497 
v.  Row,  23  Wall.  331,  126 

School  District  v.  Cooper,  29  Neb. 

433-  65 

School  Manual,  In  re,  63  N.  H.  574,  26 
School  Town  v.  Gebhart,  60   Ind. 

187,  162 

Schooner    Constitution    v.   Wood- 
worth.  2  111.  511,  21,  303 
Schoonover  v.  Irwin.  5S  Ind.  287,     101 


TABLE  OF  CASES. 


CVll 


[References  are  to  Pages.] 


Si'hoonover  v.  Reed.  65  I  ml.  313,  757 
Schoultz  v.  McPheeters,  79  Ind.  373,  5, 7 
Schouton    v.  Kilmer,  S    How.    Pr. 

527.  5S9 

Schreckengasl  v.  Ealy,  [6  Neb.  510,  523 
Schrichte  v.  Stites,  etc.,    127    fnd. 

472,  177.  I*-, 

Schreiber  v.  Butler,  84  Ind.  576,       580, 

686 
Schriber  v.  Richmond,  73  Wis.  5,  413 
Schroeder  v.  Merchants    Ins.  Co., 

104  111.  71,  12 

v.  Rock  Island,  etc.,  Co.,  47  la. 

375. 

v.  Schmidt,  71  Cal.  399. 

v.  Schweizer,  60  Cal.  467, 
Schuff  v.  Ranson,  79  Ind.  45S, 
Schulties  v.  Reiser,  95  Ind.  159, 
Schultz  v.  Cremer,  59  la.  is2. 

v.  McLean  (Cal.),  18  Pac.  Rep. 

775. 
Schultze  v.  McLeary,  73  Tex.  92, 
Schunck  v.  Gegenseitiger,  etc.,  44 

Wis.  369, 
Schuster  v.  Wingert,  30  Kan.  529, 
Schuylkill    County    V.    Boyer,    125 

Pa.  St.  226, 
Schwab  v.  Charles  Parker  Co.,  55 

Conn.  370, 

v.  City  of  Madison.  49  Ind.  329, 
y.  Coots,  4S  Mich.  116, 
Schwann  v.  State.  Si  Ind.  2^7. 
Schwarz  v.  Oppold,  74  X.  V.  307, 
Schweickhart    v.   Stuewe,  75   Wis. 

Scobey  v.  Finton,  39  Ind.  27^,  1599, 

Scofield   v.  Whitelegge,  49    N.  Y. 


259. 

Scott  v.  Allen,  1    Tex.  50S, 

y.  Board,  101  Ind.  42,  5  (.5, 

v.  Burton,  6  Tex.  322, 
v.Crawford,  12  Ind.  410, 
V.  Indianapolis  Wagon  Works, 
48  Ind.  75, 

v.  Jones,  4  Taunt.  S65, 
v.  Kelly,  22  Wall.  57,' 
y.  Marchant,  88  Ind.  349, 
y.  Milton  (Fla.),  7  So.  Rep.  32, 
y.  Minneapolis,    etc.,    Co.,    42 
Minn.  179, 

v.  Scott,  ^  Ga.  102, 

v.  Scott,  124  Ind.  66,  623, 

V.  Stetler,  12S  Ind.  385,  507, 

v.  Yolo    County,   etc.,  75  Cal. 

114. 

\.  Zartman,  61  Ind.  32S,       394, 

ScottV  Succession,  41  La.  Ann. 668 

Scotland  County  v.  Hill,  112  U.  S. 

183,  699, 


539 
96 

475 
395 
379 

692 

74 
436 

4S1 
537 

418 

667 

591 

6S2 

379 

t'^ 

126 

601, 
603 

521 

71 
767 

6S 
215 

509 

697 

249 

3'- 
3*4 

293 
590 
689 
609 

436 
396 

,   7S 


Scotten  v.  Divelbiss,  [6 Ind 
v.  I  >i\  ilbiss,  60  Ind.  37, 
v.  L(  mgfelloM ,  40  ]  nd.  2].  51 1 

\ .  Randolph,  96  Ind.  5S1,  172 

Scotton  y.  Mann.  89  Ind.  404.     295 
Scovell  y.  Kingsley,  7  Conn.  284, 
Scovern  v,  State,  6  Ohio  St.  2SS, 


Scoville  v.  Chapman.  17  Ind.  470, 

Scripps  y.  Reilly,  35  Mich.  371. 

7<>3 
Scriven  v.  Hursh,  39  Mich.  98, 
Scroggs  v.   Stevenson  (N.  C.),    12 
S.  E.  Rep.  1031, 

v.  Stevenson,  100  N.  C.  354, 
Seager  v.  Aughe,  97  Ind.  285.    159, 


16S. 

;  1 
617. 

7"4 
7<> 

191 
170, 


Sealy    v.    California,   etc.,   Co.,    19 

Ore.  94,  633 

Searl  v.  Smith.  15  Ind.  23,  767 

Searle  v.  Whipperman,  79  Ind.  42  \. 
[26,  284,  285,  287,  295,  399.  595.599.  72S 
Searles  v.  Averhoff,  2S  Neb.  66S,        102 
Seavev  v.  Maples,  94  Ind.  205,  735 

v.  Walker,  108  Ind.  78,    '  703 

Security  Co.  v.  Arbuckle,   123  Ind. 

518,  15^475. 

Seekell  y.  Norman,  78  la.  254,   615. 
Segelke  v.  Finan,  48  Hun.  310,  5S2 

Segler  v.  Coward,  24  So.  Car.  119,     1 1 1 
Seibert  v.  State,  95  Ind.  471.  256 

Seifert  v.  Brooks,  34  Wis.  443,  1  js 

Seifrath  v.  State,  t,^,  Ark.  412,  789 

Seig  v.  Long,  72  Ind.  iS,  17S.  775 

Seivers  v.  McCall,  1  Ind.  393,  524 

Selking  v.  Jones,  52  Ind.  409, 
Selkirk  v.  Cobb,  13  Gray,  313,  731 

Sellers  v.  Foster,  27  Neb.  1.  557 

v.  Union  Lumber  Co..  36  Wis. 

39S. 
Semmes  v.  United  States,  91  U.  S. 

21,  47'' 

Semple,  etc.,  Co.  v.  Thomas.  10  Mo. 

App.  457,  100 

Senate  Resolutions,  In  re,  21  Pac. 

Rep.  470,  5 

Senter  v.  De  Bernal.  38  Cal.  637,       1 1 1, 


Sentinel  Co.  v.  Thomson,  38  Wi>. 

489, 
Sering  v.  1  >oan,  23  Ind.  455, 
Sessions  v.  Pintard,  [8  How.  [06, 
Seward  v.  Clark.  67  Ind.  2s. >.      219, 
v.  Corneau.  [02   U.  S.  t6l, 


-71 
328 


v.  I  lay  den,  105  Mass.  1  ;s. 
v.  Jackson.  8   Cow  . 
v.  Malotte,  1 5  Cal.  304, 
Sexton  v.  Pike,  13  Ark.  [93, 


31; 


324 
101 


:vm 


TABLE   OF  CASES. 


[References  a 

Seymour  v.  Board,  40  Wis.  62,  519 

\.  Freer,  5  Wall.  822,  324 

Seymour,  etc.,   Co.  v.  Brodhecker 
(Ind.),  30  N.  E.  Rep.  — .       754.  77° 

our,  City  of,  v.  Cummins,  119 

Ind.  14S,  765 

kman  v.  Little,  s7  Ind.  [Si,         511 

Shafer  *> .  Ferguson,  103  Ind.  90,         729 

v.  Newlan.  29  111.  44,  483 

Shaffer  v.  State,  27  Ind.  131,  541 

Schafer  v.  State,  (.9  Ind.  460,  606 

Shane  v.  Lowry,  4S  Ind.  171,  6S7 

Shank  v.  Fleming,  9  Ind.  189,  616 

Shannon  v.  Cavazos,  151  U.S.  App. 

LXXI,  44S 

v.  I  lav,  106  Ind.  5S9,  19 

v.  Marselis,  Saxt.  (N.  J.)  4I3,       134 

v.  Spencer,  1  Blackf.  120,  271 

Sharon  v.  Sharon,  68  Cal.  326,  208 

v .  Sharon,  79  Cal.  633,  569 

Sharp  v.  Brunnings,  35  Cal.  520,        672 

v.  Malia,  124  I  ml.  407,  713,  719 

v.  Miller,  57  Cal.  415,  327 

Moffitt,  94  Ind.  240, 


-155 
Sharpe  v.  Clifford,  44  Intl.  346,  394,  636 

69S 

3°9 
119 

56 

1 86 

793 

739 


v.  Graydon,  99  Ind 
v.  Harding,  21  Ind.  334, 
v.Jones, 3  Murphy  (N.C.),3o6, 
v.  Kelley,  5  Denio,  431,  34, 

V.  Sharpe,  27  Ind.  507, 
v.  Trever,  8  Minn.  273, 
Shatto  v.  Crocker,  87  Cal.  629, 
Shaughnessy  v.  St.  Louis, etc.,  Co., 

7  Mo.  App.  591,  767 

Shaw  v.  Binkard,  10  Ind.  227,    162,  401 
\    Bryan,  39  Mo.  App.  523,  655 

v.  Fleming,  5   Houst.  155,  496 

v.  Hoadley,  8  Blackf.  165,     596,598 
v.    Merchants'   Nat.   Bank,  60 
Ind.  11,  163,  218,  719 

v.    New    York,    etc.,    Co.,    150 

Mi   5.  1S2,  690 

\.  Newsom,  7^  Ind.  7,31,  17S 

v.  Padley,  04  Mo.  519.  191 

v.  Williams,  S7  Ind.  158.  156 

Appeal,  121  Pa.  St.  302,  535 

Shea  v.  Quintin,  30  Iowa,  58,  147 

Shearouse  v.  Smith.  83  (>a.  520,  6S 

Sheehan  v.  People.  131  111.  22,  691 

Sheeks  v.  Fiilior,  29  N.  E.  Rep.  443,    43] 

Sheeley  v.  Wiggs,  32  Mo.  398,  306 

Slu<!  i  \.  Bray,  125  Ind. 33,  525,  626,  646 

\ .  Selden,  2  Wall.  177,  102 

Shelby  Tp.  v.  Randies,  57  Ind.  390,  440. 

591 

Sheldon   v.  Dalton,  57  Cal.  19,  [15 

v.  New  ton.  3  Ohio  St.  494,  12 

v.  Wright, 7  Barb.  59,   147,285,  fiSi 

Shellenbarger  v.  Biser,  5   Neb.  195,  590 

ShellitO  V.  Sampson.  61   la.  40,  699 


re  to  Pa 

Shelly  v.  Vanarsdoll,  23  Ind.  543, 

404. 
Shelton  v.  Van    Kleeck,  106  I.  .   S. 

532> 

v.  Wade.  4   lex.  14S, 
Shenners  v.  West  Side,  etc.,  Co.,  78 

Wis.  3S2, 
Sin  paid  v.  New  York,  etc.,  Co..  60 
Hun.  584, 
v.  Brenton,  20  la.  41, 
Shepherd  v.  Dodd,  15  Ind.  217. 
v.  Groff,  34  W.  \'a.  123, 
v.  Lanfear,  5  La.  336, 
v.   Missouri,  etc.,  Co.,  85   Mo. 
(.29. 

v.  Pepper,  133  L  .  S.  620, 

v.  State,  64  Ind.  43, 

Sheppard  v.  Collins.  12  la.  570, 

■  .  Shelton,  34  Ala.  652, 

v.  Wilson,  6  How.  260, 

Shepperd  v.  Brown,  30  W.  Va.  13, 

Sherlock  v.  Ailing.  44   Ind.  is). 

v.  First  Nat.  Hank.  53  Ind.  73, 
Shercliff  v.  State,  96  Ind.   , 
Sherman  v.  Hogland,  73  Ind.  472, 
v.  McKeon,  38  N.  Y.  266, 
v.  Nixon.  37  Ind.  153,  179. 

v.  Palmer,  37  Mich.  509, 
v.  Windsor,  etc.,  Co.,  57  Vt.  57, 
Sherry  v.  Foresman,  6  Blackf.  56, 
v.  State  Bank.  6  Ind.  397, 
v.  Win  ton,  1   Ind.  96, 
Shewv.  Hews.i2<>  Ind.  474,416,  527. 
Shewalter   v.    Bergman,    123    Ind. 
155,  13,  165,  190.420,  758,  760, 

v.  Williamson,  125  Ind.  373. 
Sheward    v.    Citizen's    Water    Co. 

(Cal.),  27  Pac.  Rep.  439, 
Shidler   v.  State  (Ind.),  2S    N.  E. 

Rep.  537, 
Shields  v.  Arnold,  I   Blackf.  109, 
\.  McMahan,  101  Ind.  591,    162. 
v.  State.  95  Ind.  299.  =530, 

Shileto  v.  Thatcher.  43  Ohio  St.  63, 
Shillern  v.  May,  6  Cranch.  267, 
Shimerv.  ButlerUniversity,  87  Ind. 

218, 
Shine    v.    Kentucky,  etc.,    Co.,    85 

Ky.  177. 
Shinkle  v.  First  Nat.  Bank.  22  Ohio 

St.  516, 
Shinnabarger   v.   Shelton,   41 

App.  147, 
Shipman  v.  State,  38  Ind.  549, 
Shircliff  v.  State,  96  Ind.  369, 
Shirk  v.  Andrews,  <;2  I  nd.  509, 
Shirley  v.  Birch,  16  Ore.  1,   132,  146. 
v.  Hagar,  3  Blackf.  225, 
v.  Lunenburgh,  1 1  Mass.  379, 


355- 
Mo. 

545' 


-55- 


3'  <s- 

5^7 

451 

5'5 

70S 
739 
3X9 
568 

539 
6;o 
40S 
306 
63S 
761 
146 

27 
760 
256 

2S9 
126 

1S1 
666 
490 
306 

339 
420 

538 


791 

86 

258 
640 

6S2 

53 ' 

34S 
45° 


774 

439 

356 

547 
792 
669 

599 

286 

130, 

273 


TABLE  OF  CASES. 


ClX 


|  /<.',  i,  r,  m  ■  -  are  to  Pages.] 


4S3 

550 

693 
623 

4°3 


Shirley  v .  Wright,  Salk.  700, 

Shirts  v.  I  rons,  28  Ind.  458,  401 .  I  il  k  , 

Shoaf  v.  Joray,  s'>  End,  70.  2S7,  295,  728 

Shoemaker  \.  Axtell.  7S  Ind.  561,      215 

v.  Board,  36  Ind.  175.  90,  507 

v.  Smith,  74  Ind.  71,  Si,  297,  399,  \>>  \ 

v.  Smith,  100  Ind.  40,  81,  494 

V.  State,  12  Ohio,  43,  679 

Sholenberger  v.  Brinton,  52  Pa.  St. 

Shell  v.  Lathrop,  3  Hill.  237, 
Shoner  v.  Pennsylvania  Co.,  28  N. 

E.  Rep.  6l6, 

Shorh  v.  Kcnzie,  100  Ind.  429, 

Shordan  v.  Kyler,  87  Ind.  3S, 

Shore  v.  Taylor,  46  Ind. 345,  297,413,784 

Shorf  v.  Kinzie,  So  Ind.  500,  77^ 

Short  v.  Chicago,  etc.,  Co.,  79  la.  73,  758 

v.  Bridwell,  15  Ind.  211,  34 

v.  Sparrow,  96  X.  C.  34S,  94 

v.  Stotts,  58  Ind.  29,  51 1 

v.  Stutsman.  81  Ind.   nq,      19S,  199, 

238 
Shotwcll    v.    McEhiney,     101     Mo. 

677,  7SS,  792 

Shoultz  v.  McPhecters,  72  Ind.  373,  9,90 
Shreffler  v.  Nodelhoffer,  133  111.  536,  636 
Shreve  v.  Dulany,  1   Cranch.  C.  C. 
.,  499-  "  697 

Shropshire  v.  Kennedy,  84  Ind.  in,  522 
Shrover  v.  Lawrence,  9  Ind.  322,  77 

Shugart  v.  Miles,  125  Ind.  44V      3,  165, 
196,  197,  198,  199,  202,  203,  669,  700, 

756-  77 1 
Shular  v.  State,  105  Ind.  2S9,       250,  256, 

539<  623,  737 
Shulse  v.  Mc Williams,  104  Ind.  512, 

615,  619,  760 
Shulties  v.  Reiser,  95   Ind.  159,  121 

Shultz  v.  Sanders,  38  N.  J.  Eq.  1^4,  495 
Shutte  v.  Thompson,  15  Wall.  151,  733 
Sibbaid,  Ex  parte,  12  Pet.  48S,  450 

Sibley  v.  Smith.  46  Ark.  27^.  =539 

Sickle  v.  Belknap  (Ind.),  28  N.  E. 

Rep.  305,  11 

Sidener  v.  Davis,  6g  Ind.  330,    250,  399, 

769,  770 
v.  Davis,  87  Ind.  342.  [63,  768 

Sidnev,  etc.,  Co.  v.  Warsaw  School 

District,  130  Pa.  St.  76.  66c 

Siebert  v.  State,  95  Ind.  471,  768 

Sigler  v.  Woods,  1   la.  177,  675 

Sikes  v.  Ransom,  6  Johns.  279,  ]  \\ 

Silberberg  v.  Pearson,  75  Tex.  2S7,   090 

Silsby  v.  Foote,  20  How.  290,  323 

v.  Frost,  3  Wash.  Ty.  388,  581 

Silvers  v.  Junction  R.  Co.,  17  Ind. 

142.  697 

v.  Nerdlinger,  30  Ind.  53,  588 

Silver  v.  Parr.  115  Ind.  113,  717 


Sim  v.  I  [urst,   1  (  I  ml. 
Simar  \ .  Canaday,  53  N.  Y.  29S, 
Simci  'ik  \ .  Bank,  1 1  Kan 
Simmon  v.  Larkin,  82  Ind. 
Simmons  v.  Beazel,  125  Ind.  y 

v.  Simmons   Mud.;,   2s    N.    E. 

Rep.  702, 

v.  Spratt,  26  Fla.  449, 
Simon  v.  Home    Ins.  Co.,  58  Mich. 

278, 
Simonds  v.  Buford,  iS  Ind.  [76, 
Simons  v.  Simons,  107  Ind.  197. 

v.  Simons,  28  N.  E.  Rep..  702, 

V.  State.  25   Ind.  331, 
Simonton  v.  Huntington,  etc.,  Co., 

12  Ind.  380, 
Simpers  v.  Simpers.   [5  Md.  160, 
Simpkins  v.  Smith.  94  Ind.  470, 
Simpson  v.  Greeley,  20  Wall.  152. 

v.  Kirchbaum,  43  Kan.  36,       65 

v.  Minor,  1  Blackf.  229, 

v.  Pearson,  31  Ind.  1,        S3,  S9, 

v.  Rothschild,  43  Kan.  33, 

v.  Shafer,  20  Ind.  306, 

v.  Wilson,  6  Ind.  474, 
Sims,  Ex  parte,  44  Ala.  24S, 
Sims  v.  Boynton,  t,2  Ala.  353, 

v.   City    of   Frankfort,    79   Ind. 
446,  215,  507,  562,  565, 

v.  Cooper,  ion  Ind.  87, 

v.  Dame,  1 13  Ind.  127. 

v.  Gay,  109  Ind.  501, 

v.  Geay,  109  Ind.  501, 

v.  Ilines,  121  Ind.  534, 

v.  Hurst,  44  Ind.  579, 
Sinclair  v.  Jackson,  S  Cow.  ^43, 

v.    Washington,    etc..    Co.,    4 
Mac  Arthur.  13, 
Singer  Mnfg.  Co.  v.  Barrett.  04  N. 
C.  219, 

v.  Sammons,  4<>  Wis.  310. 

v.  Struckman,  72  Ind.  601, 
Single  v.  Schneider,  30  Wis.  570, 
Singleton  v.  O'Blenis,  125  Ind.  151, 

v.  Pidgeon,  21  Ind.  1 18, 
Sinker,    Davis  &  Co.  v.  Green,  113 

Ind.  204,  475,  712 

Sinking  Fund  Cases,  99  U.  S.  700,    5,  9 
Sioux  City,  etc.,  Co.  v.  Finlayson, 

16  Neb.  578,  539. 

Sire  v.  Ellithrope,  etc.,  Co.,  137   U. 
S.  579, 

v.  Rumbold.    11     X.   V.    Supp. 

734.  5  17 

Sisson  v.  State.  77  \\  is.  273,        230.  254 
Sites  v.  M  iller,  1  20  Ind.  19, 
Sixth  Avenue,   etc.,   Co.  v.  Gill 

etc.,  Co..  71  X.  Y.  1.30,  335.  462 

Si/er  v.  Many.  [6    How.  98,  492 

Skaggs  v.  State.  10S  Ind,  53,       293,  791 


60 1 

572 

22 1 

613 

557 

217 

9- 

254 

758 
192 
090 
116 

322 
208 

483 
792 

70 

y  k  1 

609 

34 
636 

10S 

61 

604 

28 

326 
757 

4\; 

61  9 


ex 


TABLE  Ol    CASES. 


[References  a 

Skeels  v.  Starrett,  57  Mich.  350,  612 
Skeen  v.  Huntington,  2^  [nd.  510,    281, 

283,  2S4 
Skidmore  v.  Davies,  10  Paige,  316,  323 
Skillen  v.  [ones,  \  \  [nd.  [36,  579 

Skillern  v.  May,  6  Cranch,  267,  49S 
Skinner  v.  Blair,  s7  N.  C.  16S,  159 

v.  Bland,  87  X.  C.  [68,  457 

Sla<  win  v.  Pom<  roy,  6  Crunch.  221,  392 
Slagle  v.  Bodmer,  58  Ind.  465,      64,  87, 

202 

Slaughter  v.  Toust,  4  Blackf.  324,  142 
Slaughterhouse    Cases,     to    Wall. 

273,  9s.  337 

Slauter  v.  Favorite.  107  Ind.  291,       506 

v.  Hollowell,  90  Ind.  286,  630 

Slessman  v.  Crozier,  So  Ind.  4S7,       187 

Slicer    v.  Bank    of   Pittsburgh,    16 

How.   571,  672 

Sloan  v.  McKinstry,  18  Pa.  St.  120.  67: 


re  to  Pages.} 

Smith  v.  Frampton,  2  Salk.  044.  n., 
v.  Frankfield,  77  N.  Y.  414, 
\    Freeman,  71  Ind.  85,394, 395, 
v.  Goodknight,  121  Ind.  312, 

v.  Goodwin,  86  Ind.  300,     7I3i 
v.  Gorham,  119  Ind.  436,     698, 
v.  Gould,  61  Wis.  31, 
v.  Guerant,  55  Mo.  584, 

Hannibal,  etc.,  Co.,  37  Mo. 


Statu.  8  Inch  312, 

v.  Whitbank,  12  Ind.  444. 

v.  Whiteman,  6  Ind.  494, 

Small  v.  Reeves.  14  Ind.  163, 

Smawley  v.  Stark,  9  Ind.  386, 

Smedes  v.  Hooghtaling,  3  Cai.  48, 

Smethhurst    v.     Independent,     etc., 

Church,  1  j.8  Mass.  261, 


2  53 
401 
1 16 
561 

76S 
310 

698 


Smetters  v.  Rainey,  14  Ohio  St.  2S7,  117 


St. 


499 


Smith  v.  Adams,  130  U.  S^  167, 
v.  Arsenal    Bank,    104    Pa. 

51S, 

v.  Bean,  46  Minn.  6S7, 

v.  Biscailuz,  S4  Cal.  344, 

v.  Baugh,  32  Ind.  163, 

v.  Burlingham,  44  Kan.  4S7 

v.  Calloway,  7  Blackf.  86, 

v.  Camp.  S4  Ga.  117, 

v.  Carr,  16  Conn.  450, 

v.  City  of  Madison,  7  Ind.  86, 

v.  Coleman,  77  Wis.  343,      126,   746 

v.  Commonwealth,  etc.,  Co.,  49 

Wis.  322. 

v.   Cooper,  21  Ga.  359, 
v.  Countryman,  30  N.  Y.  655, 
v.  Cudworth,  24  Pick.  196, 
v.  Cunningham,   2    Tenn. 

565, 

v.  Davidson,  45  Ind.  390, 


702 
733 
3°7 
756 
6.39 

5S9 
667 

577 
3° 


617 

459 
406 
190 


Ch. 

117 

257,  r.ss, 
748 

\ .  Dennison,  101  111.  057,  471 

v.  Dittman,  11  N.  Y.  Supp.769,  545 
v.  Dodds,  35  End.  452,  294 

v.  Dragert,  61   Wis.  222,  519 

v.  Eaton,  50  la.  4SS,  559 

v.  Ellendale  Mill  Co.,  4  Ore.  70,  90, 

671 
v.  Flack.  95  [nd.  116,  524,  765 

v.  Floyd,  18  Barb.  522,  529 

v.  Foster.  59  Ind.  595,  461,  632 


287, 


546, 


Harris,  76  Ind.  104, 
I  lavs,  23  111.  App.  244. 
1  Filer,  119  Ind.  212,  636,679, 
Hess,  91  Ind.  424,  SS, 

Hood.  25  Pa.  St.  218, 

Hubbard,  85  Tenn.  306, 
Huntley,  48  Mich.  352, 
Hutchison,  S3  Mo.  6S3, 
Jeffries,  25  Ind.  376,  292,  6SS, 
junction,   etc.,   Co.,   29   Ind. 

Kibbe,  31  Hun.  390, 

Kruger,  33  Ind.  S6, 

Kyler,  74  Ind.  575,    162,  294, 


v.  Laumier,  12  Mo.  App.  546, 

v.  Leisher,  23  Ind.  500, 

v.  McCarthy,  33  111.  App.  176. 


6S: 


, McKean.gglnd.  101,502,  74S, 
.  McMillen,  19  Ind.  391, 

Martin,  So  Ind.  260, 
.  Meldren,  107  Pa.  St.  348, 
.  Mohn,  S7  Cal.  4S9, 
,  Morrill,  39  Kan.  665, 
.  Myers,  5  Blackf.  223, 
.  Myers,  109  Ind.  1.  5,  13,  392, 
.  Nescatunga,  36  Kan.  758, 
.  Neubern,  70  N.  C.  14, 
.  Newland,  9  Hun.  553, 
.  Niagara  Fire  Ins.  Co.,  60  Vt. 

.  Noe,  30  Ind.  117, 

.  Promtt,  S2  Va.  S32, 

.  Rowles,  S5  Ind.  264, 

.  Ryan,  S3  Ind.  152,  266, 

.  Schulenberg,  34  Wis.  41, 

.  Shaffer,  29  Neb.  656, 

.  Shoemaker,  17  Wall.  630, 


750 
494 
396 
21 5, 
590 

71S 
699 

5-- 
6 

640 
268 

537 
707 

5°4 
178 

4S1 

752 
640 
718 

1S6 

I41 
4S0 

296, 

769 

677 

77" 
70S, 

73§ 


162 
394 


v.  Smith,  3  Ind.  303, 

v.  Smith,  77  Ind.  So, 

v.  -Smith,  106  Ind.  43, 

v.  Smith,  52  N.J.  L.  207, 

V.  Smith,  51   Wis.  665, 

v.  Speed,  50  Ala.  276, 

v.  St.  Paul,  etc.,  Co.,  32  Minn 


'. 


749 
619 
566 
582 
713 
738 
1  So 

444 
308 

3° 
664 

698 

179 

675 

■56 
279 

4S3 
490 

573. 
614 

509 

76S 

395 

578 

5J9 

2S 

53S 


TABLE  OF  CAS1  S 


CXI 


[Jtefi  rences  are  to  Pages.\ 


Smith    v.    St.    Louis,    etc.,  Co 
Mo.  s?s. 

v.  State,  4S  Ark.  148, 
v.  State,  1 17  Ind.  [67, 
v.  Strother,  68  Cal,  194, 
v.  Summerfield,  m-  N.  C. 
v.  Summerfield,  [08  N.  C. 
v.  Tatman,  71  Ind.  171, 


■>  53 

306 

94 

79' 

5,26 

5S«>  455 
284,  634 
294,  6S7. 

72S 


v.  Taylor.  11    la.  214.  770 

v.  Thomason,  26  S.  C.  607,  66 

v.  Trabue,  9  Pet.  4.  73 

v.  Uhler.  99  Ind.  140,  688 

v.  United  States.  94   U.  S.  97,  24S 

v.  Washington,  20  How.  13^,  63 
v.  Western  Union  Tel.  Co.',  S3 

Ky.  269,  332 

v.  White,  5  Dana,  376,  729 

v.  Whitney,  116  U.  S.  167,  441 

v.  Williams,  22  111.  357,  556 

v.  Williams,  11   Kan.  104,  791 
Williamson,  6    Hal.  (N 


v.  Williamson,  o    rial.  (JN.  J.) 
313.  677 

356,  35S 
14   Cal. 

52- 
Dillon,  16  Ind.  169,         669 


Wright.  71  111.  167, 
Yreka   Water   Co. 


201. 
Smithson 

Smock  v.  Brush,  62  Ind.  156,  597 

v.  Harrison,  74  Ind.  34S,       307,  394 

Smoot  v.  Boyd,  S7  Ky.  642,  269 

v.  Eslava.  23  Ala.  059,  739 

v.  Wathen,  8  Mo.  522,  604 

Smurr  v.  State,  SS  Ind.  504,  6S9 

v.  State,  105  Ind.  12^,  2^0,  s-7. 

647,  668,  669 

Smyth,  Ex  parte,  3  A.  &  E.  319,        43^ 

v.  Strader,  12  How.  U.  S.  142,'  137 

Smythe  v.  Boswell,  117  Ind.  365,     5,  6, 

7,  Si,  03,  263.  333 

Snavely  v.  Abbott  Buggy  Co.,  36 

Kan.  106,  65,  71 

Snead  v.  Tietjen  (Ariz.),  24  Pac. 

Rep.  324,  698 

Snell   v.  De  Land   (111.),  27  N,   E. 
Rep.  1S3, 

v.  Hancock,  11  la.  117, 
v.  Snell,  123  111.  403, 
Snelson  v.  State,  16  Ind.  29. 
Snodgrass  v.  Hunt,  1^  Ind.  274, 


Snowden  v.  Wilas,  19  Ind.  10, 

Snyder  v.  Braden,  ,S  Ind.  143, 
v.  Fleming,  124  Ind.  335, 
v.  Snyder,  75  la.  255, 
v.  State,  124  Ind.  33^,     105 
v.  United  States,  112  U.  S 

Sodousky  v.  MeGee,  4  J.J.  Marsh 
267,  '  534,615 

Sohn  v.  Cambern,  106  Ind.  302.    19,  562 
v.  Jervis,  101  Ind.  578,  537,  702 


544 
562 

33 
670 
7SS, 
7S9 
605 
619 

345 

^08 

261,  '276 

216,  ^81 


10 

JS2 

3- 

739 

V> 

396 

1  )n 

1  So, 
612 


Sobn  v.  Marion  Gravel   Rn;u; 

73  Ind-  77-  7-1 

Solomon  v.  Reese.  34  Cal. 
Somerville  v.  Reid,  35  Ga.47, 
Somes  v.  British  Empire  Shipping 

Co..  SILL.  338, 
Songer  v.  Walker,  1  Blackf.  251, 
Souders'  Appeal.  57  Pa.  St.  49S, 
Souders  v.  Jeffries,  98  Ind.  31, 
Sourse  v.  Marshall,  23  Ind. 
South  v.  State,  86  Ala.  6 17, 
South  Bend,  City  of,  v.  Hardv,  9S 

Ind.  577,  '537. 

Southern, etc.,  Co.  v.  Stalev  (T 

13  S.  W.  Rep.  4S0, 
Spahr  v.  Nicklaus,  51  Ind.  221, 
Spalding  v.  Wathen.  7  Bush.  659, 
Spanagel  v.  Dellinger,  3S  Cal.  27^. 

Spangler  v.  San  Francisco,  S4  Cal. 

12,  18  Am.  St.  Rep.  158,     158,  159,  160 
Sparkin   v.  Wardens,  etc.,  119  Ind. 

535. 
Sparklin   v.  St.  James  Church.  119 

Jnd.  535, 
Sparks  v.  Heritage,  4^  Ind.  66, 

v.  State,  59  Ala.  82, 
Sparling  v.  Dwenger,  60  Ind.  72, 
Spaulding  v.  Baldwin.  31  Ind.  376, 

v.  Thompson,  12  Ind.  477,      64, 
Spear  v.  Place.  11  How.  522, 
Spears  v.  Clark,  6  Blackf.  167, 

v.  Matthews,  66  N.  Y.  127, 
Speer  v.  Davis,  3S  Ind.  271, 
Speight  v.  People,  S7  111.  591;, 
Spencer,  Ex  parte,  S3  Cal.  460, 

95  N.  C.271, 
Spencer  v.  Chrisman,  15  Ind.  21;, 

v.  Levering,  S  Minn.  461,     411. 

v.  McGonagle,  107  Ind.  410, 

v.  Robbins,  106  Ind.  5S0,     526, 

v.  St.  Louis,  etc.,  Co.,  79   Mo. 
500, 

Spencer  Water  Co.  v.  Vallejo,  4S 

Cal.  70, 
Sperrv  v.  Dickinson.  S2  Ind.  132, 
Speyers  v.  Torstritch,  5  Rob.  (X. 

Y.)6o6. 
Spicer  v.  Hoop,  51  Ind.  365, 

v.  Hunter,  14  Abb.  Pr.  4, 
Spickerman  v.  McChesney,  m  N. 

Y.  686, 
Spies  v.  Chicago,  etc..  Co.,  40  Fed. 

Rep.  34, 

v.  People,  122  111.  1, 
Spitley  v.  Frost,  15  Fed.  Rep.  299, 
Spitz  v.  Kerfoot.  42  Mo.  App.  77, 
Splahn  v.  Gillespie,  4S  Ind.  397, 
Spooner  v.  Handley,  i<i  Mass.  313, 


1S° 

-74 
393 
61S 

59° 
670 

s6 

49 
7;; 
459 

S7 

9 

SS 

So 

646 

5- 
536 


4 
7S2 

590 
601 


415 

216 

528 

73 

745 


C  X 1 1 


TABLE  OF  CASES. 


[  ffi  ferences  a 

Sprague  v.  Pritchard,  108  Ind.  491, 

215,  532,  646 
Spraker  v.  Armstrong,  79  Ind.  577,  712 
Spring  v.  South  Carolina  Ins.  Co., 

6  Wheat.  519,  461 

Springer  v.  Peterson,  1  Blackf.  iSS,  43S 
Springfield,  City  of.  v.  Sleeper,  115 

5.  5S7-      "  534 

Sprinkle  v.  Tonev,  73  Ind.  592,     45,  46 

Spurgeon  v.  Smitha,    114  Ind.  453,     327 

Spurrier  v.  Briggs,  17  End.  529,  789,790 

v.  Gal,  1  1  lalst.  157.  441 

Squire  v    Ford,  9  Hare.  47.  IO 

St.  Cr   ix,   etc.,   Co.   v.  Richie,  73 

Wis.  401,.  4S2 

St.  'jhn  *.     Ilnrdwick.  17  Ind.  1S0,    638 

■     W.  -•   4  How.  Pr.  329.  750 

L>t.  lou.  ,  tic,  Co.  v.  Evans,  etc., 

Co.,  15  Mi,.  .App.  590,  124 

\ .  Godly,  45  Ark.  4S5,  770,  775 

v.  Hendricks,  4S  Ark.  177,  702,  739 


Holman,  45  Ark.  102,  7^n 

v.  Lux,  63  111.  523,  61 

v.  McBride,  141  U.  S.  127,  630 

\.  McLain   (Tex.),    15     S.    W. 

Rep.  789,  265 

v.  Missouri,  etc.,   Co.,   12    Mo. 
App.  570,  160 

v.  Myrtle,  51  Ind.  560,  622 

v.  Southern    Express    Co.,    108 
U.  S.  _>|.  72 

v.  Triplett(Ark.}   .  Law.  Rep. 
Anno.  773.  636 

St.    Louis   Brokerage  Co.  v.    Bun- 
nell, 76  Mo.  554.  411 
St.    Mark,   etc.,   Co.   v.   Harris,    13 

How.  Pa.  95,  601 

St.  Paul,  etc.,  Co.  v.  Kelly,  43  Kan. 

741.  620 

Stafford  v.  Nutt,  51  Ind.  535,  603 

v.  Union  Bank  of  Louisiana,  16 

How.  135,  316,323,439 

Stagg  v.  Compton,  Si  Ind.  171,  755 

Stair  v.  Richardson,  10S  Ind.  429,     774 

Staley  v.  Barhite,  2  Caines,  221,         604 

v.  Dorset,  11  Ind.  367,  83,  208 

v.  Howard,  7  Mo.  App.  377,  311,  312 

S tailings  v.  Barrett,  26  S.  C.  474,      596 

Stamps  v.  Newton,  3  How.  (Miss.) 

34)  l3 

Stanaford  v.  Parker  (Kv.),  1^  S.  W. 
.  Rep.  784,  7sC> 

Stanard  v.  Brownlaw,  3  Mumf.(  Va.) 

229,  483 

Standard  Oil  Co.  v.  Brctz,  98  Ind. 

23*.  57- 

Stanford  v.  Cronkhite,  114  Ind.  220,  7S1 
lley  v.  Northwestern,  etc.,  Ins. 
Co.,  95  Ind.  254.  398,  399,  640 


Stanley  v.  Smith.  15   Ore.  505, 


762 


re  to  Pagt  %.  ] 

Stanley  v,  Sutherland,  54  Ind.  339, 
Stanton  v.  Ballard,  [33  Mass.  404, 

v.  State,  74   Ind.  505,     500.  766, 

v.  State,  s-'  Ind.  1' 
Stanton  Co. v.CanfieUl,  10  Neb.  389, 
Stark  v.  Jenkins,  1  Wash.  Ty.  421, 

v.  Thompson,  3  J.J.  Mar.  (Ky.) 

300> 

Starke v.Jenkins,  1  Wash.  Ter.421, 

Starkweather  v.  Kittle,  17  Wend. 20, 

Starner  v.  State,  61  Ind.  360,     203, 

Starr  v.  Cass,  23  Ind.  45S, 

v.  Hunt,  25  Ind.  313. 
Starry  v.  Winning,  7  Ind.  311,  195, 

Staser  v.  Hogan,  120  Ind.  207,  300, 
373,  622,  669,  702,  756, 

State  v.   Aarons  (La.),  9  So.  Rep. 
114. 

v.  Acker,  52  N.J.  L.  259, 
v.  Adams,  20  Kan.  311, 
v.  Adams.  84  Mo.  310, 
v.  Adamson  (Minn.),  45  N.  \V. 
Rep.  152, 

v.  Adamson.  33  Minn.  196, 

v.  All  Lee,  8  Ore.  214, 

v.  Ah  Tong,  7  Nov.  148, 

v.  Allen,  94  Ind.  441, 

v.  Ailing,  12  Ohio,  16, 

v.  Anderson.  42    La.  Ann.  474, 

V.  Anderson.  96  Mo.  241, 

v.  Anone,  2  Nott.  c\:  Mc.  27, 

v.  Armstrong,  35  Mo.  App.  49, 

v.  Atkinson,  33  S.  C.  100,    239, 

v.  Avery,  17  Wis.  672, 

v.  Aver.  27,  N.  II.  301, 

v.  Bagan,  41  Minn.  2S5, 

v.  Bailey,  16  Ind.  46, 

v.  Baker.  63  N.  C.  276, 

v.  Baldwin,  70  la.  180, 

v.  Bancroft,  22  Kan.  170, 

v.  Banks.  48  Ind.  197, 

v.  Baoughem,  20  la.  497, 

v.  Barker.  43  Kan.  262, 

v.  Barrett,  40  Minn.  65, 

v.  Bartlett,  9  Ind.  509,  230,  234, 

-54.  744. 
v.  Baxter,  2S  Ark.  129, 
v.  Peck,  Si  Ind.  500, 
v.  Bennett.  7;  Me.  590, 
v.  Berdetta,  73  Ind.  1S5,   231, 
v.  Berg.  50  Ind.  496, 
v.  Biddle,  36  Ind.  138,     433, 
v.  Billings,  23  L.  Ann.  798, 
v.  Bird,  107  Ind.  154, 
v.  Blanch,  70  Ind.  204,    563, 
v.  Bloom.  17  Wis.  521, 
v.  Board,  25  Ind.  210, 


6Sq 
20S 
767 

5',J 
703 
11 1 

23 

91 
605 

27s. 
777 
612 

554 

202, 
669 

345. 

7s- 

57S 
16 1 

539 
673 

153 
747 
53S 
618 
238 
250 
754 
547 
250 
40 
257 
567 
6S0 
690 
592 

579 
130 

5^ 

•IN 
698 

5'7 
23C. 

74r' 
5 
592 
765 
2  39 
30S 

437 
671 

576 

62  S 
250 
43S 


TABLE  OF  CASES. 


CXI  II 


References 

v.  Board,  45  End.  501,       435,  437, 

4.1s-  59Ji  592 
v.  Board,  63  [nd.  497,  435,  591 

v.  Board,  66  End.  2  16,  [88 

Hoard,  92  End.  [33,  360,  301 


v.  Board,  39  Kan.  S^,  592 

v.  Bouche,  5  Blackf.  [54,  237 

v.  Bradley,  29  Mo.  App.  366,  44^ 

v.  Brady,  i<>7  V  C.  822.  '  578 

\.  Breaux,  32  La.  Ann.  222,  528 

v.  Brecht,  4]  Minn.  50,  679 

v.  Breese,  15  Kan.  123,  434 

v.  Britton,  102  Iiui.  214,  307 
v.  Brown,  44  End.  3-9,            77»  -l7 

v.  Brown,  71  Mo.  454,  5 

v.  Brown,  5  Ore.  119,  S4 

v.  Brown,  ^  S.  C.  151,  251 
v.  Bruder,  35  Mo.  App.  475,   120,  560 

v.  Buchler,  103  Mo.  203,  253 

v.  Burge,  7  la.  255,  792 

v.  Burnett,  119  End.  392  240 

v.  Burns,  14  Mo.  App.  5S1,  159 

v.  Burns.  66  Mo.  227,  97 

v.  Burthe,  39  La.  Ann.  32S,  249 

v.  Byrd,  93  N.  C.  624,  326 

v.  Cady,  47  Conn.  44,  7S5 
v.  Cape  Girardeau,  etc.,  73  Mo. 

56°.  437.  519 

v.  Cair,  37  Kan.  421,  754 

v.  Campbell,  67  Ind.  302,  234 

v.  Carter,  9S  Mo.  176,  239 

v.  Caulfield,  23  La.  Ann.  14S,  2^1 
v.  Chase,  41  Ind.  356,  87,  335,  462 
v.  Chastain,  104  N.  C.  900,  1S3 

v.  Circuit,  31  N.J.  L.  249,  620 

City  of  Newark,  4S  N.  J.  L. 

5*3 

.  Claire,  41  La.  Ann.  1067,  530 

.  Clark,  16  Ind.  97,  791,  792 

.  Clark,  33  La.  Ann.  422.  460 

.  Clayton,'  34  Mo.  App.  563,  435 
.  Clement,  15  Ore.  237,  763 

.  Coghlen,  S6  End.  404,  190,  192 
.  Coleman,  46  N.W.  Rep. 664,  350 
.  Collins,  33  La.  Ann.  152,  2  ;i,  2  ;2 
.  Collins,  70  N.  C.  241,  5  j  1 

.  Collins,  93  X.  C.  564,  657 

.  Connolly,  3  Rich.  L.  337,  674 
.  Cooper,  103  Ind.  75,  239,  256 
.  Coulter,  46  Kan.  87,  673,  470 

County  Court,  etc.,  64   Mo. 

434 
430 
765 
679 

2  2  2 

439 


are  to  Pages.] 

State  v.  Cummins,  76  la.  133, 
v.  Cumming,  36  Mo.  2'  >  3, 
v.Cunningham,  101  Ind.  461, 
v.  I  )ailv.  i>  Ind.  9, 

v.  Daubert,  42  Mi ».  242, 

v.  Daugherty,  59  Mo.  104, 

v.  Davey,  39  La.  Ann.  507, 

v.  Davis,  4  Blackf.  345, 

v.  Davis,  73  Ind.  359,  146, 

v.  Davis,  41  la.  311, 

V.  Davis,  47  la.  63  |,  240, 

v.  ,Dav,  52  End.  483, 

v.  Delafield,  (><>  Wis.  264, 

v.  Delano,  34  Ind.  52,   105,  247. 


101, 


170, 


Rep 


County  Judge,  5  la.  3S0, 
Cowan.  7  Ired.  L.  239, 
Crawford,  q<>  Mo.  74, 
Credle,  63  N.  C.  506, 
Cressinger,  ss  End.  499, 
Cromwell  (N.  V.),  10  N. 
•  27°» 
Cucuel,  31  N.  J.  L.  249. 

II 


176 
579 


73, 


v. 

V. 
V. 

Atl. 
v. 


581,' 

V. 
V. 


Demaree,  So  Ind.  519, 
De  Moss,  98  Mo.  340, 
1  >enny,  1  [8  Ind.  382, 
Dickerson,  9>  N.  C.  70S, 
Dickson,  6  Kan.  209, 
Dillon,  96  Mo.  56, 
District  Judge,  41  La.  Ann. 

Dogonia,  69  Mo.  4S5, 
Dove,  10  Ired.  L.  469, 
Downs.  7  Ind.  2S3, 
Drogomond,  55  Mo.  87, 
Duffel,  4  La.  Ann. 958, 
Dufour,  63  End.  ^67, 
Dunlop.  65  N.  L.  2SS, 
Dumphey.  4  Minn.  43S, 
Dver,  99  Ind.  420, 
East,  88  Ind.  602,  116, 

Easton,  etc.,  Co.  (Md.),  20 
Rep.  242. 

Elam.  21  Mo.  App.  290, 
Ellis.  41  La.  Ann.  41, 
Ely,  11  Ind.  313,  63,70, 

Ely,  14  Ind.  291, 
Emmerson,  74  Mo.  607, 
Engle,  127  Ind.  457, 
Ennis,  74  End.  17. 
Ensey,  42  Ind.  480, 
Ensign,  1 1  Neb.  529, 
Evansville,  etc.,  Co.,  107  End. 

64, 

Ezekiel,  33  S.  C.  115, 
Farrar,  mj  X.  C.  702,      176. 
Farrell,  23  Mo.  App.  170, 
Ferguson,  42  La.  Ann. 643. 
Field.  37  Mo.  App.  83,      4^8. 
First  Nat.  Bank,  89  Ind.  302, 
Fitch,  113  Ind. 478, 
Fitzhugh,  2  Ore.  227. 
Flad,  26  Mo.  App.  500, 
Fleming,  13  la.  4  \;, 
Flemons,  6  End.  279, 
Foster,  44  N.J.  L.  378, 
Foulkes,  94  Ind.  493,        ^22' 
Fowler,  41  La.  Ann.  3S0, 


657 

4-'- 
230 

657 

4''1 
237 
2 

244 

463 

276 

435 

547 

I 

252 

462 

43r' 
740 

-54 

251 

4;'' 
669 

44" 


iS 

28 

4.V 
J5: 
234 

439 
672 

237 

(.1 


-.■>.■> 
612 
650 

455 
439 

355 
5" 

75" 
45'> 
-43 
7<'t 
454 
6« 


CX IV 


T.M'.LE  OF  CASES. 


Reft  rences  tt 

State  v.  Frain,  82  Ind.  532,  239,  240 

v.  Frazer,  28  Ind.  196,  244,  253,  679 
v.  French,  2  Tin.  (Wis.)   r.8l,  58 

v.  Funck,  17  [a.  365,  527,  71S 

v.  Gallagher,  r.6  La.  Ann.  3SS,    7S9 
v.  Gallo,  iS  Ore.  423,  25  \ 

v.  Gannaway,  16  Lea.  124, 
v.  Garig  (La.),  S  So.  Rep.  934 


4 

792 
619 

657 

248 
62  1 


v.  Garrand,  5  Ore.  216, 
v.  Gaslin,  25  Neb.  71, 
v.  ( ray,  94  N.  C.  841, 
v.  Gilmore,  28  Mo.  App.  561, 
v.  Gleason,  SS  Mo.  582, 
v.  Goings,  100  N.  C.  504, 
v.  Granville,  45  Ohio  St.  264, 
v.  Gray,  54  Ind.  91, 
v.  Green,  16  la.  239, 
v.  Green,  112  Ind.  462, 
v.  Green,  42  La.  Ann.  644, 
v.  Hall,  58  Ind.  512, 
v.  Hallowell,  91  Ind.  376,     1S3,  239, 

240 
v.  Hamilton,  62  Ind.  409, 
v.  Hamilton,  27  La.  Ann.  400, 
v.  Hammill,  6  La.  Ann.  257, 
v.  llanna,  S4  Ind.  1S3. 
v.  Harland,  74  Wis.  11, 
v.  Harmon,  31  Ohio  St.  250, 
v.  I  Iarper.  38  Ind.  13, 
v.  Harris,  S9  Ind.  363,  354,  357 

v.  Harris.  39  La.  Ann.  228,  750 

v.  Harrison,  5  Jones  (N.C.)  115,  195 
v.  Hattabaugh,  66  Ind.  22^,        123, 

H9»  x54 
v.  Hawes,  43  Ohio  St.  16, 
v.  Hawkins,  Si  Ind.  4S6, 
v.  Hay,  SS  Ind.  274, 
v.  Hendrick,  62  la.  414, 
v.  Hightower,  33  S.  C.  59S, 
v.  llinchman,  27  Pa.  St.  479, 

v.  Holcombe,  41  La.  Ann.  1066,  254 

v.  Hood,  7  Blackf.  127,  07  1 

v.  Hope,  100  Mo.  347,           254,  729 

v.  Horner,  10  Mo.  App.  307,  437 

v.  Hosmer,  85  Mo.  553,  668 

v.  Houston,  35  La.  Ann.  236,  460 

v.  Huffman,  16  Ore.  15,  572 

v.  Hughes,  15  Ind.  104,  219 

v.  Irish,  42  Ind.  506,  276 

v.Jackson,  12  La.  Ann.  679,  703 

v.  Jackson,  42  La.  Ann.  1170,  578 

v.Jackson,  32  S.  C.  27,  556 

v.  Jacobs,  2S  S.  C.  29,  120 

v.  Jarvis,  20  Ore.  437,  251 

v.  Jefferson,  66  N.  C.  309,    232,  531 

v.Jeffries,  98  Ind.  31,  564 

v.  Johnson,  S  Blackf.  533,  237 

v.Johnson,  102  Ind.  247,  232 

V.Johnson,  105  Ind.  463,  9 


231 
258 
616 
217 
9 
578 
-34 


232 

529 

461 

251 
"7 

5 

-77 


438 
704 
511 
77i 

99 

6S1 


re  to  Pages.] 

State  v.  Jones.  61  Mo.  232, 

v.  Jones  (N.  C),  13  S.  E.  Rep. 

1 12, 
v.  Jones,  97  N.  C.  469, 
v.Jones,  12  S.  E.  Rep.  657, 
v.  Jones,   [I  la.  II,  112. 

v.  Judge,  21  La.  Ann.  65, 
v.  Judge,  23  La.  Ann.  29, 
v.  Judge,  29  La.  Ann.  360, 
v.  Judges, etc.,  41  La.  Ann.  1012, 
v.  Julian,  93  Ind.  292, 
v.  Justices  of  Mocre  Co.,  2  Ired. 

L.  430. 

v.  Kamp.  in  Ind.  56,  125, 

v.  Kansas  City  Court,  97   Mo. 

331.  "  I25- 

v.  Kaub,  15  Mo.  App.  433, 
v.  Kern.  127  Ind.  465.  234. 

v.  Kill   Buck   Turnpike  Co.,  8 

Ind.  71, 

v.  King,  42  La.  Ann.  77, 

v.  Kinkaid,  23  Neb.  641, 

v.  Kinnav,  41  la.  424, 

v.  Kirkpatrick,  54  la.  373, 

v.  Klaas,  42  Ind.  506, 

v.  Kline,  54  la.  1S3, 

v.  Knight,  43  Me.  11, 

v.  Knight,  46  Mo.  83, 

v.  Knight,  31  S.  C.  81, 

v.  Knowles,  34  Kan.  393, 

v.  Koslem  (Ind.),  29N.  E.  Rep. 

595.  34 ». 

v.  Krug,  S2  Ind.  58, 
v.  Krug,  94  Ind.  366,  334, 

v.  Kutter,  59  Ind.  572, 
v.  Laughlin,  75  Mo.  35S, 
v.  Lawrence,  3S  Mo.  535, 
v.  Lawrence,  Si  N.  C.  522, 
v.  Leach,  120  Ind.  124, 
v.  Leach,  71  la.  54, 
v.  Lechman  (S.  D.),  49  N.  W. 

Rep.  3, 
v.  Lee,  29  Minn.  445, 
v.  Leeper,  70  la.  74S, 
v.  Lenig,  42  Ind.  541, 
v.  Leaver,  62  Wis.  3S7, 
v.  Leunig,  42  Ind.  541, 
v.  Lewis,  22  N.  J.  L.  564, 
v.  Lewis,  20  Nev.  2>Z7>i 
v.  Lieben,  57  Ind.  106, 
v.  Lindlev,  9S  Ind.  4S, 
v.  Lowe,  21  W.  Va.  7S2, 
v.  Lull,  37  Me.  246, 
v.  Lusk,  6S  Ind.  264, 
v.  McCabe,  74  Wis.  4S1, 
v.  McDonald,  30  Minn.  9S, 
v.  McDuffie,  107  N.  C.  S85, 
v.  McGinnis,  17  Ore.  332, 
v.  McGuire,  40  La.  Ann.  37S, 
v.  McKee,  109  Ind.  497,        161, 


"7" 

447 
679 

658 

771 

79 

7- 
44i 
435 
563 

43S 
126 

43r> 

29 

255 

592 
439 
440 

2  49 
334 

■74 
252 

736 
5S2 
440 
249 

456 

766 

463 
124 

5*9 

431 
230 

2  39 
760 

733 

35 

25  ! 

239 

745 
54 » 
421 
699 
379 
255 
250 

537 
23S 
440 

43s 
746 

373 
126 
240 


TABLE  OF  CASES. 


CXV 


R,  /.  >■■  net  -  a 

State  v.  McLaughlin,  77  End.  335, 

v.  McNamara,  eoo  Mo.  ioo,  292 

v.  Madoil,  12  Fla.  151,  528 

v.  Maher,  71  I...  77.               517,  533 

v.  Mann,  83  Mo.  5S9,  529 

v.  Marsh,  [19  I  nil.  394,  775 

v.  Marsteller,  S4  N.  C.  727,  232 

v.  Mathews,  37  N.  H.  450,  7 

v.  May,  4  Dev.  32S,  657 

v.  Mayo,  42  La.  Ann.  637,  439 

v.  Meehan,  45  X.J.  L.  1S9,  592 

v.  Meeker,  19  Neb.  444,  61 

v.  Megown,  89  Mo.  156,  43S 

v.  Mellor,  13  R.  I.  666,        529,  57S 

v.  Moloney,  79  la.  413,  514 

v.  Merrill,'  16  Ark.  3S4,  7 
v.  Merriman  (S.  C),  12   S.  E. 

Rep.  619,  57S 
v.  Meyers,  99  Mo.  107,         254,  743 
v.  Michaels,  S  Blackf.  436, 
v.  Miller,  7  Ind.  275, 
v.  Miller,  63  Ind.  475,             65, 
v.  Miller,  100  Mo.  606, 
v.  Millin.  3  Nev.  409, 
v.  Mitchell,  31  Ohio  St.  592, 


1506 

674 

7i 

2  s2 

679 
127, 

4*5 

674 


441, 


Montgomery,  2S  Mo.  594, 
Moore,  77  la.  449, 
Moriarity,  20  la.  595,  453 

Morrison,  103  Ind.  161,  504 

Munchrath,  7S  la.  26S,  52S,  736 
Murdock,  S6  Ind.  124.  66S,  756 
Murphy,  S  Blackf.  49S,  234 

Murphy,  41  La.  Ann.  526,  439 
Murrell,  33  S.  C.  S3,  24S 

Musick,  71  Mo.  401,  45S 

Mustard.' So  Ind.  2So,  744 

Nelson,  26  Ind.  366,  541 

Nelson,  101  Mo.  477,  391 

New-  Brunswick, 42 N. J. L. 51,  5 
New  Orleans,  43    La.  Ann. 

650 
Newkirk,  So  Ind.  131,       237,  255 
v.  Newlin,  69  Ind.  10S,  635 

y.  Noble,  11S  Ind.  350,     3,  9,  14,  36 
v.  Northern  Central"  R.  Co.,  iS 
Md.  193,  303 

y.  Norton,  20  Kan.  506),  435 

y.  Nowland,  29  Ind.  212,  40S 

y.  O'Brien,  21  La.  Ann.  265,       674 
V.  Oeder,  So  la.  72.  792 

y.  Olds,  19  Ore.  397,  612 

y.  One  Bottle  of  Brandy,  43  Vt. 
297.  217 

v.  Oyerholser.  69  Ind.  144,  234,  235 
v.  Owens,  63  Tex.  261,  592 

y.  Padgett,  S2  N.  C.  544,  232 

v.  Palmer,  40  Kan.  474,  679 

v.  Parker,  106  N.  C.  711,  50S 

v.  Parkinson,  5  Nev.  15,  58,  179 


>■■  to  Pages. \ 

\ .  Parish,  S3  Ind.  22^, 
y.  Parish   fudge,  27    La.   Ann. 

1S4, 

v.  Paterson.  45  \  t.  308, 

V.  Patterson,  etc.,  Co.,  43   N.  J. 

L-  505- 

v.  Patton,  13   I  red.  L.  421, 

y.  Peak.  85  Mo.  I90, 

y.  Phares,  2  j  \V.  Va,  657, 

v.  Pierce,  14  Ind. 302, 

v.  Poison,  29  la.  133, 

v.  Potts,  20  Neb.  7  159, 

v.  Powell,  40  La.  Ann.  241, 

v.  Prater,  26  S.  C.  613, 

v.  President,  etc.,  44  Ind.  350. 

v.  Probasco,  46)  Kan.  310,    64S, 
v.  Pugsley,  75  la.  742, 
v.  Quarrel,  2  Bay.  150, 
v.  Rabourn,  14  Ind.  300, 
v.  Ray,  53  Mo.  345, 
v.  Raymond,  11  Nev.  98, 
v.  Reed, 

v.  Republican  River,  etc.,  Co., 
20  Kan.  404, 

v.  Richmond,  6  Fost.   (N.  II.) 


232, 

v.  Riggs,  92  Ind.  336, 

v.  Rightor,  36  La.  Ann.  112, 

v.  Rising,  15  Nev.  164, 

v.  Robbins,  124  Ind.  30S, 

v.  Roberts,  40  Ind.  451, 

v.  Rockwell    (la.),    4S    N.    W. 
Rep.  721, 

v.  Roderigas,  7  Nev.  328, 

v.  Rook,  42  Kan.  419, 

v.  Rousch,  60  Ind.  304, 

v.  Ruhlman,  in  Ind.  17, 

v.  Ruth,  21  Kan.  5S3, 

v.  Saxon,  42  Ind.  4S4, 

y.  Scbeper  (S.C.),  n  S.  E.  Rep. 
623, 

y.  Seyerson,  7S  la.  653, 

v.  Se\ier,  117  Ind.  33S, 

v.  Shaw,  5  La.  Ann.  342, 

v.  Sheldon,  2  Kan.  322, 

v.  Shelledy.  S  la.  477, 

v.  Shoemaker,  101  N.  C.690, 

v.  Slavin,  16  Mo.  App.  541, 

v.  Slick,  S6  Ind.  501, 

y.  Smith,  49  Conn.  376, 

y.  Smith.  S  Ind.  4S5, 

v.  Smith.  35  Kan.  618, 

v.  Smock.  20  Ind.  1S4,  665, 

v.  Snodgrass, 98  Ind.  546), 

V.  Soudriette.  105  Ind.  306, 

v.  Spencer,  92  Ind.  115,     64.  70, 

v.  Squaires,  2  Nev.  226, 

\  .  Svjuiiv^.  2''  la    340, 


591 

553 

73' 
777 

2.- 1 

44=; 

:'■> 
743 
610 

527 
761 

578 
239 

!3 

43S 

519 

121 
603 

578 
679 

234 
635 

6ll 
23') 

1 

674 

610 

61 
440 

57a 
254 

792 
670 


-  1 


<.   \V1 


TABLE  OF  CASES. 


[References  a 
v.St.  Louis  Court  of  Appeals, 
87  Mo.  569,  46 

v.  St.  Paul,  etc.,  Co., 92  Ind.  42,  6SS 
v.  Stain,  82  Me.  |7-\ 
v.  Staker,  3  End.  570, 
v.  Stebbins,  2c;  Conn.  463, 
v.  Stein,  13  Neb.  529, 

V.  Stewart,  32  Mo.  379, 

v.  Stewart,  68  Wis.  234, 

v.  Straw,  33  Me.  554, 

v.  Supervisors,  3S  Wis.  554, 

v.  Sutterfield,  54  Mo.  391, 

v.  Swails,  8  Ind.  524, 

v.  Swarts,  9  Ind.  221,    187,  203,  195, 

751 
v.  Tcmplin,  122  Ind.  235,       74,  407, 
488,  494,  749,  783 
v.  Tennison,  42  Kan.  330,  (>2t, 

v.   Terre   Haute,  etc.,    Co.,  64 
Ind.  297,  177.  265,  26S,  275,  469 

v.Thomas,  m  Ind.  515,  536,  538 
v.  Thomas,  99  Mo.  23^,  657 

v.  Thompson,  81  Mo.  163,  325,  450 
v.  Thorn,  28  Ind.  306,  109,  467 

v.  Tickel,  13  Nev.  33,  618 

v.  Tompkins,  71  Mo.  613,  619 

v.  Tool,  4  Ohio  St.  553,  441 

v.  Town  of  Tipton,  109  Ind.  73,  592 
v.  Tp.  of  Union,  37  N.  J.  L.26S,  514 
v.  Trout,  75  Ind.  503,  320 

v.  Turner,  18  S.  C.  103, 
v.  Trustee,  etc.,  5  Ind.  77, 
v.  Trustees,  etc.,  114  Ind.  3S9, 
v.  Tumey,  81  Ind.  559,  233,  237,  239 
v.  Turner,  6  La.  Ann.  309,  528 

v.  United  States,  8  Blackf.  252,  323 
v.  Vail,  53  Mo.  97,  431 

v.  Van  Valkenburg,6o  Ind.302,  234 
v.  Vanderbilt,  116  Ind.  11,  236 

v.  Voorhies,  41  La.  Ann.  567,  647 
v.  Wagner,  78  Mo.  644,  250 

v.  Wakefield,  15  Atl.  Rep.  1S1,  '12 
v.  Walker,  26  Ind.  346,  239 

V.  Wallace,  41  Ind.  445,  231,  439 
v.  Walters,  64  Ind.  226,        124,  154, 

243-  244<  34s>  36«,  443 
v.  Wamire,  16  Ind.  357,  250 

v.  Wapucca  Bank,  20  Wis.  640,  498 
v.  Ward,  75  la.  637,  239 

v.  Warner,  55  Wis.  271,  436 

v.  Wasson,  99  Ind.  261,  480 

v.  Watson,  Si  la.  380,  729 

v.  Watts,  S  La.  (0.  S.)  76,  435 

v.  Weaver,  123  Ind.  512,  290,  745 
V.  Weaver,  104  N.  C.  75S,  252 

v.  Webber,  22  Mo.  231,  763 

v.  Weil.  89  Ind.  286,  240 

v.  Weiskittle.  6]  Md.  48,  755 

v.  Weld.  39  Minn.  426,  101 

v.  Wenzel,  77  Ind.  428,  58S 


791 

V 

409 
674 

32°. 

V 

592 

"3. 

43i 

266 

V 

V 

663 

V 

434 
64 

V 

V 

235 

V 

745 
592 

59 1 


re  to  Pages.] 
State  v.  Westmoreland.  29  S.  C.  1. 

v.  Wheeler,  65  la.  619, 

Whitewater,  etc.,  Co.,  8  Ind. 

13. 
Whitman,  14  Rich.  L.  (S.  C.) 

Whitney,  7  Ore.  386,         291, 
Whitten,  23  Mo.  App.  459, 
Williams,  99  Mo.  291, 
Wilson,  50  Ind.  4S7,  239, 

Wilson,  52  Ind.  166, 
Wilson,  8  la.  407, 
v.  Wilson,  40  La.  Ann.  751, 
v.  Wilson,  104  N.  C.  868, 
v.  Winter  Park,  25  Fla.  371, 
v.  Wiseman,  68  N.  C.  203, 
v.  Wolever,  127  Ind.  306,  12,299, 
v.  Wood  (Ind.),  30  N.  E.  Rep. 

3°9> 

v.  Woodward,  89  Ind.  no, 

v.  Worden,  46  Conn.  349, 

v.  Wyatt,  76  la.  328, 

v.  Wyse,  32  S.  C.  45, 

v.  Yount,  4  Ind.  653, 

v.  Younts,  89  Ind.  313, 

v.  Zanesville,  etc.,  Co.,  16  Ohio 

St.  30S, 
State  Bank  v.  Abbott,  20  Wis.  599, 
v.  Dutton,  11  Wis.  371, 
v.  State,  1  Blackf.  267, 
State  Ins.  Co.  v.  Schreck,  27  Neb. 

527> 
State    Reservation,    Matter   of,  102 

N.Y.734, 
Stayner  v.  Joyce,  120  Ind.  99,     575, 
Steamboat   Lake  of  the  Woods  v. 

Shaw,  2  Gr.  (la.)  91, 
Steamer  Virginia  v.  West,  19  How. 

182, 
Steamship  Co.  v.  Tugman,  106  U. 

S. 118, 
Stearlv's  Appeal,  3  Grant,  370, 
Stearns  v.  Warner,  2  Aik.  ( Vt.)  26, 

v.  Wright,  51  N.  H.  600, 
Steel  v.  Grigsby,  79  Ind.  1S4, 

v.  Thompson,  3S  Mo.  App.  312, 
Steele  v.  White,  2  Paige,  478, 
Steeple  v.  Downing,  60  Ind.  47S, 
Steer  v.  Little,  44  N.  H.  613, 
Stefani  v.  State,  124  Ind.  3, 
Steffen  v.  Jefferis  (Mont.),  22  Pac. 

Rep.  152, 
Steffy  v.  People,  130  111.  98, 
Stegman  v.  Berryhill,  72  Mo.  307, 
Stenman  v.  Crull,  26  Ind.  436,    215, 
Steinau    v.    Cincinnati,    etc.,    Co. 

(Ohio),  27  N.  E.  Rep.  545, 
Steinkamper  v.  McManus,  26  Mo. 

App.  51, 


124. 

125 
240 

41S 

528 

647 
266 
440 

541 

256 

529 
581 
120 
101 

27,2 
424 

751 
592 

2.5  1 
252 

530 

-37 
306 

59  * 
217 
658 

273 
547 

61 
6i5 

323 
104 

631 

J3 

765 
647 
6S7 
492 
129 
487 
537 
554 

3S3 
254 
158 

525 

59i 
574 


TABLE  OF  CASES 


CX  V.l 


References  are  to  Pa 


St.l'e  v.  Lovejoy,  [25  111.  352,  31 2 

Steikc/  v.  Li  Rose,  70  Ind.  435, 
Stenz('.  v.  Sims,  25  111.  App.  538,       453 
Sterr.c  e.  First   Nat.   Bank,  79  End. 
560,  39S 

v.  Vert.  111    Ind.  40S,    10S  Ind. 
21,2,  126 

Sterntwrger  v.  Bernheimer  (N.Y.)> 

24  N .  I».  'Rep.  311,  291 

Steplu'.is  \ .  Bradley,  23  Fla.  393,       176 

v.  Bradley,  24  Fla.  201,  6S1 

v.  Koonce,  to6  N.  C.  255,     454,  456 

v.  Railroad.  96  Mo.  207,  657 

v.  Regenstein,  No  Ala.  561,  571 

v.  Stephens,  51  I  ml.  542,     379,  446 

Stephenson  v.  Ballard,  82   Ind.  87,     294 

v.  Doe,  8  Blackf.  50S,  61 

v.  State,  no  Ind.  358,  517.  53°>  53L 

578,  678,  689 

v.  Stiles,  3  N.J.  L.  543,  736 

Stevens  v.  Campbell,  21   Ind.  471.      596 

v.    Higginbotham     (Utah).   23 

Pac.  Rep.  757. 

v.  \e\  )1t,   1  5  Ind.  224, 

v.  Phctnix   Ins.  Co.,  41   N.  Y. 

J49> 

v.  Stevens,  127  Ind.  560,       531, 

v.  Webb,  7  C.k  P.  60, 

v.  Wolf.  77  Tex.  215, 
Stevenson  \ ,  Felton,  99  N.  C.  58, 

v.  Miller.  2  Lilt.306, 

v.  Sherwood,  22  111.  23S, 

v.  State,  71   Ind.  52, 

v.  Steinberg,  32  Cal.  373. 
Stewart  v.  Babbs,  120  Ind.  56S, 

v.  Codd,  58  Md.  S6, 

v.  Huntington  Bank,  11  S.  X  R. 
267, 

v.  Rankin,  39  Ind.  161,         770, 

v.  Salamon,  97  U.  S.  364, 

v.  Smith,  in  Ind.  526, 

v.  State,  24  Ind.  142, 

v.  State,  in  Ind.  554,  16S,   682 

v.  State,  113  Ind.  505,  40S,  636,  760 

v.  Stewart,  31  Ala.  207,  31 

v.  Stringer,  41  Mo.  400,  456 

v.  Taylor,  68  Cal.  5,  450 

Sticknev.  Ex  parte.  40  Ala.  160,  438 

Stinson  v.  O'Neal,  32  La.  Ann.  947,  120 


445 

782 


617 

560 
291 
300 
666 
30S 
639 
274 
114 

743 
771 
15" 
535 
759 


v.  Ross,  51  Me.  556, 
Stipp  v.  Claman,  123  Iml.  532, 

v.    Spring   Mill,   etc.,    Co.,    34 
Ind.  16, 
Stith  v.  Fullinwieder,  40  Kan.  73, 
Srttt  v.  State,  91  Ala.  10. 
Stix  v.  Sadler.  109  Ind.  254,       21 


195 
536 

573 
615 

717 
532> 

713 


Stockman  v.  Riverside,  etc.,  Co.,  64 
,      Cal.  57,  407 

atockton  v.  C<  leman,  42  Ind.  281,     407 


Stockton  v.  Lockwood,  82  In  I 

\  .  Stockton,   )o  Ind.  22  --. 

Stockwell  v.  State,  [oi   Ind.  [, 

t"-  I 
v.  Thomas,  76  I  nd. 

Stoddard  v .  Chambers.  2    How.  284, 
v.  Emery.   1  28  l'a.  St.    | 
v.  Johnson,  75  Ind.  20, 
v.  Roland,   51   S.  C.   3  (.2, 
v.  1  Etna,  etc.,  Ins.  Co.,  10  W. 

v.l  546, 

Stone  v.  Brown,  1 16  Ind.  78,       712. 
v.  Spellman,  [6  Tex.  432, 

v.  State.    \2   Ind.    |.l8,      2  ;  . 

v.  State.  75    Lid.  235.  320. 

Stoops  v.  Greensburgh,  etc.,  Co.,  10 

Ind.    17, 
Stoots  v.  State,  10S  Ind.  415. 
Stoppenbach  v.  Zohrlaut,   21   Wis. 

285, 
Storm  v.  United  States, 94  U.S.  76. 
Story,  Ex  parte,   12   Pet.  339,        438, 
Story  v.  O'Dea,  23  Ind.  3 
Stott  v.  Smith,  70  Ind.  298,  678,  767, 
Stoughton  v.  State.  2  Ohio  St.  562, 

v.  State,  5  Wis.  291, 
Stout  v.  Calver,  6  Mo.  254, 

v.  Curry,  no    Ind.  314,  294, 

v.  Gully,  13  Col.  604, 

v.    Indianapolis,    etc.,    Co..    41 
Ind.  149, 

v.  MePheeters.  84  Ind.  585.  215. 

v.  St.,:,'.  0,,  [nd.  1.         254,  255. 

v.  State,  7S   Ind.  492, 

v.Turner.  102  11111.418,395,396, 

v.  Woods,  70  Ind.  10S, 
Stovall  v.  Ranks,  10  Wall.  583, 
Stowe  v.  Querner,  L.  R.  5  Exch. 

1.55. 
Strader  v.  Manville,  33  Ind.  in, 

2     2, 

Strang  \.  Beach,  n  Ohio  St.  2S3, 
Strangev.  Lowe.  8  Blackf.  243, 

v.  Tyler.  95   Ind.  395, 
Stratton  v.  Commonwealth,  S4  Kv. 

v.  Graham,  68  Cal.  168, 
v.  Kennard,  74  Iml.  302,       769, 
v.  Lockwood,  1  Irul.  App.  3S0, 
\  .  Paul,  10  la.  1  |i  1, 

Strauss  v.  Cooeh.  47  Ohio  St.  11;. 

Stribling  v.  Brougher,  70  Ind..  328, 
v.  Splint   Coal   Co.,  31  W.  Ya. 
82, 

v.  Tripp,  86  Ind.  [66, 

Strickland  v.  Draughan,  9]  N.  *. 

Striker  v.  Kelly.  2  Denio,  3:'. 
Stringer  v.  Davis,  30  Cal.  510, 


455 

77' 

76 
15° 

674 

7SS 
295 

495 

'43 
525 
530 

- ;  5 
7"1 

7"' 
281, 

oo  1 

17s 


-H 
208 


733 


5  J  / 


.vm 


TABLE  OF  CASES 


l\,  ft  rences  <"■•  to  Pagi  s.  \ 


_.t  v.  Frost,  n6  Ind.  177.  738 

Northwestern,  etc.,    Co.,  S2 
Ind.  too,  480 

v.  Francis,  3  ( >hio,  277,  -'  1 

\ .  Lemon,  etc.,  Co..  9  Nev.  257.  789 
\ .  United  States,  [33  U.  S.  29 
Stroch  v.  Com.,  90  Pa.  St.  272,  396 

Strong,  Ex  parte.  20  Pick.  484,  433.  515 
Strong  v.  Downing,  34  I  ml.  300         599 
v.  Manf.  C<»..  <>  Hun.  528,  517 

v.  Makeever,  102  Ind.  57S,  108 

v.  State.  1 05  Ind.  1,  253 

v.  Strong,  102  N.  Y.  09.  589 

v.  Taylor  School   Tp.,  79  Ind. 

566 

v.  Willey,  104  U.  S.  512.  646 

Stropes  v.  Board,  72  Ind.  42,       714.  715 

er  v.  City  of  Ft.  Wayne.  100 

Ind.  443,  41S 

Strough  v.  Gear,  48  Ind.  100,      640.  641, 

645 
Struber  v.  Rohlfs.  36  Kan.  202.  447 

Stuart  v.  Gay,  127  U.  S.  51S,  112 

v.  Haven,  17  Neb.  211,  539 

v.  Laird,  1  Cranch.  299,  58,  479 

v.  Palmer.  74  X.  Y.  1S3,  121,  148 
Stuckey  v.  Fritsche,  77  Wis.  327,  597 
Stnddart,  In  re.  30  Minn.  553,  68 

Studley  v.  Hall,  22  Me.  [98,  621 

Studwell  v.  Shapter,  54  N.  Y.  249,  58S 
Stull  v.  Howard,  26  Ind.  456,  67S.  733 
Stults  v.  Zahn,  117  Ind.  297,  328 

Slump  v.  Fraley,  7  Ind.  679,  761,  777 
Stumph  v.  Bauer,  76  Ind.  157.  712 

Stunz  v.  Stunz,  131  111.  309,  44 

Sturgeon  v.  Gray,  96  Ind.  166,  88 

Sturgis  v.  Rogers,  26  Ind.  1,       207,  209, 

213-  3oS>  3°9'  3".  3J4 
Sturm  v.  State,  74  Ind.  27S,  231.  2  17 
Stutsman  v.  Barringer,  [6  Ind.  363,  579 
Sturtevant  v.  Wineland.  22  Neb.  702.  447 
Suarez    v.  Manhattan   Ry.  Co.,  60 

Hun.  584,  547,  655 

Sullivan  v.  Frazell,  4  Rob.  (N.  Y.) 

v.  Haug,  82  Mich.  548, 

v.  McMillan  (Fla.),  S  So.  Rep. 


634 
303 


!  - '  '■ 

v. 

Mo. 


544 
676 


Missouri    Pacific    R.  Co.,  97 

"3. 

\.  ()  Conner.  77  Ind.  149,  7SS 

v.  State.  52  Ind.  309,  690 

V.  State.  46  N.  J.  L.  446,  534 

Sullivan,  Town  of,  v.   Phillips,  no 

Ind.  320.  0114 

Suman  v.  Cornelius.  78  Ind.  506,        792 
Summers    v.    Greathouse,    S7   Ind. 

526,  619,  624.  686 


Hick-.    134   Pa.  St. 


Summerson 

566, 

Sumner  v.  Coleman.  20  Ind.  486,        596 
v.  Cook.  12  Kan.  [62,  68] 

v.  Goings,  74  Ind.  293,   170.  182,  511 
Sunbolf  v.  Alford,  3  Mess.  >S:  Wels. 

248,  540 

Sunier  v.  Miller.  105   Ind.  393,  630 

Supervisors  v.  Amight,  54  Mass.  672.    7 
Supreme  Lodge,  etc.,  v.  Johnson,  7^ 

Ind.  1 10,  747 

Supreme  Lodge  of  Knights  of  the 

Golden  Rule  v.  Rose,  62  Tex.  321.  675 
Sutherland  v.  Hankins,  56  Ind.  343, 

773-  784 

v.  Putman  ( Ariz.),  24  Pac.  Rep. 

320,  164,  20S 

v.  Yenard,  34  Ind.  390,  689 

Sutherlin  v.  State,  10S  Ind.  3S9,         254. 

255,  792 

Sutton  v.  McConnell.  46  Wis.  269.    4^6 

Suvdam  v.  Hovt,  1  Dutch.  (N.  Y.) 

230,  462 

v.  Williamson.  20  How.  427,        754 

Swaggard  v.  Hancock,  25  Mo.  App. 

596'  754 

Swafford  v.  Whipple,  3  G.  Greene, 

261,  615 

Swales  v.  Grubbs,  126  Ind.  106,  575,  626 
Swan  v.  Clark,  So  Ind.  57,  76S 

Swank  v.  Nichols,  24  Ind.  199,  578 

Swann  v.  Wright,  no  I*.  S.  590,       112 
Swasey  v.  Adair,  83  Cal.  136,    324,  445 
Swearengen  v.  Gulick,  67  111.  20S,     672 
v.  Leach,  7  B.  Monr.  285,  700 

Sweeney,  Ex  parte,  126  Ind.  5S3,  24,  29, 
31,  45,  46,  48,  50,  51,  53,  57,  356 


v.  State,  51  Ind.  201, 
\ .  Tarney,  123  Ind.  560, 


Sweeney  v.  Reilev.  42  Cal.  402,  612 

Sweet  v.  Merki,  27  111.  App.  245,  99 

Sweetzer  v.  McCrea,  97  Ind.  404,  75S 

Swem  v.  Green,  9  Col.  358,  758 

Swift  v.  Allen,  55  111.  303,  1S0 

v.  Edson,  5  Conn.  163,  596 

v.  Mulkey,  14  Ore.  59,  624 

v.  Mulkey,  17  Ore.  532,  266 

v.  Ratliff*  74  Ind.  420,  535 

v.  Tousey,  5  Ind.  190,           101,  102 

Swigart  v.  State,  67  Ind.  2S7,  530 

Swinburn  v.  Swift,  15  W.  Va.  483,  441 

Swinnev  v.  Nave,  22  Ind.  17s.  635 

Sword  v.  Keith,  31  Mich.  247,  578 

Svlvis  v.  Sylvis,  n  Col.  319,  402 

Szorn  v.  Lamar,  71  Ga.S5,  499 


Taber  v.  Grafmiller,  109  Ind.  206,      678 
Huston,  5  Ind.  322, 


149.  360    Tabor  v.  Judd,  62  N.  H.  2S8, 
692 


619,  621, 
740 


TABLE  OF  CASES. 


C  X !  X 


.  ,//-,■  to   /' 


Tabor  v.  Staniels,  2  Cal.  (c  701 

Tachau  v.  Fiedeldey,  si  Ind.  54,       287, 

295.  7-s 
raggart    v.  revanny,   1    Ind.   App. 

»,  532,  646 

Talbird  v.  Whippee,  31  S.  C.  600.     .\  \- 
Tallmrt  v.  Berkshire  Lite  Ins.  Co., 

So  Irul.  434.  122.  361,  7  1  2 

Talcott  v.  Johnson,  41  Ind.  201. 
Talkington  v.  Parrish,  8g  Ind.  202,   640 
Tapley  v.  McGee,  6  Ind.  56, 
Tarhell  v.  Bowman.  103  Mass.  341,  634 
Tarbox  v.  Sughrue,  36  Kan.  225,       592 
Tardy  v.  Howard.  12  Ind.  404.  712 

Tarkin^ton  v.  Link.  2j  Neb.  B26,       601 
v.  Purvis.  1  jS  Ind.  1S2,    712,  713.  719 
Tate  v.  Booe,  9  Ind.  13,  56] 

v.  Ohio,  etc.,  Co.,  10  Ind.  174.     604 


523 

256 
701 
440 
646 
638 

46S 
619 


620 


Tatem  v.  Potts.  -  Blackf.  ^34 

Taulbv  v.  State,  38  Ind.  437, 

Tayloe  v.  Riggs,  1  Pet.  ^91, 

Taylor.  Ex  parte,  14  How.  3, 

Taylor  v.  Adair.  22   la.  279. 
v.  Adams.  58  Mich.  187, 
v.  Baltimore,  etc.,  Co.,    33  W 
Va.  39, 
v.  Betsford,  13  Johns.  487, 
v.  Board,  120  Ind.  121,    04.  203,  444 
v.  Burk,  91  Ind.  252,     219.  222,  22^. 

692 
v.  Carpenter,  2  Sandf.  Ch.603,  673 
v.  Clavpool,  si  Blackf.  557,  603 

v.  Cole,  3  T.  *R.  292,  5SS 

v.  Collins,  51   Wis.  123. 
v.  Davis  (Tex.),  13  S.  W.  Rep 
642. 

v.  Deverell,  43  Kan.  469, 
v.  Elliott,  52  Ind.  588, 
v.  Elliott,  53  Ind.  441, 
v.  Fletcher,  15   Ind.  80, 
v.  Flint,  35  Ga.  124. 
v.  Greely,  3  Me.  204, 
v.  Johnson,  113  Ind.  164,     243,  394. 
395.  396 
v.  King,  ^2  Mich.  42.  599 

v.  Lohman,  74  Ind.4iS,  480 

v.  Nichols,  S6  Tenn.  ^2,  402 

v.  Penquite.  35  Mo.  App.  389,  547 
v.  Savage,  1  How.  I".  S.  282,  136 
v.  Savage,  2  How.  U.  S.  375,  136 
v.  Savage,  2  How.  I".  S.  394,  136 
v.  Shelkett,  66  Ind.  297.  777 

v.  Shew,  39  Cal.  536,  463 

v.  Short,  40  Ind.  506,  637 

v.  Skrine,  2  Const.  (S.  C.)  69 
v.  Smith,  4  Ga.  133,  494 

v.  State,  82  (  ra.   578,  4^4 

v.  State   (Ind.),  29  N.  E.  Rep. 
4J5>  550 

v.  State.  16  Tex,  App.  514,  320 


77  f 

7:,- 

"5 

140 

767.  769 
765 

5-7 


164 

n 


626 

7'  " 
540,  70S 
163.  693 

75« 


Taylor  v.    ^-,  am    \.<\  igati  m  I 

105  N.  C.4S4,  34; 

v.  \\  illiams,  120  Ind.  414, 

v.  Wing,  83  N.  Y.  527, 

v.  \\  ootan,  1  Ind.  App.  1 
Teal  v.  Spangler,  7.  Intl.  380,    2;;. 

725>  72 
Tedrowe  v.  Esher.  56  Ind.  443, 

Tegeler  v.  Shipman,  t,t,  la.  194. 

Teikert  v.  Wilson,  38  Minn.  341, 

Telford  v.  Garrels,  132  111.  550,    "ju. 

v.  Wilson,  71  Ind.  555,  - 

Temple  v.  Lasher,  39  Ind.  203, 

v.  Superior  Court,  70  Cal.  211.  437 
Templeman  v.  Steptoe,  1  Munf.  339 
Templeton  v.  Hunter.  10  Ind.3So.     37s 

v.  Yoshloe,  72  Ind.  134.  043 

Tennessee,  etc.,   Co.  v.  East    Ala- 
bama, etc.,  Co.,  Si  Ala.  94, 
Ten  Eyck.  Estate  of.  36  Hun.  575, 
Terre   Haute,  etc..  Co.  v.  Barr.  31 
111.  App.  57, 

v.  Bissell,  10S  Ind.  113. 

v.  Brunker,  12S  Ind.  542, 

v.  Clark.  73  Ind.  16S, 

v. Jackson.  81  Ind.  19, 

v.  Soice,  128  Ind.  505, 

v.  Teel.  20  Ind.   131. 
v.  Wilson,  16  Ind.  102. 
Terre   Haute  v.  Terre  Haute,  etc., 

Co..  94  Ind.  305. 
Terre  Haute,  City  of.  v.    Hudnut. 

H2  Ind.  542.  702.  703.    739 

Terrill   v.  Jennings,   1   Met.  (Kv.  1. 

45°.  11- 

Terry,  Ex  parte,  12S  U.  S.  2S9,  7 

Terry  v.  Abraham.  93  U.  S.  38, 

v.  Hatch.  93  U.  S.  44.  79 

v.  Shively,  93  Ind. 413.  294.  580 
Terwilliger  v.  Murphy.  104  Ind.  32.  603 
Tesh    v.    Commonwealth,   4    Dana 

(Ky.),  522. 
Test  v.  Larsh,  76  Ind.  452,   126,  3^0.  401. 

: 

Testard  v.  State,  26    Tex.  App.  200.   536 
Territory  \.  Bryson,  9  Mont.  32. 

v.  Burgess,  S  Mont.  ^7. 

v.  Ely,  6  Dak.  [28, 

v.  Haxhurst,  3  Dak.  205. 

v.  links,  b    Mont.  13^.    19   Pac. 
Rep.  386, 

v.  Langford,  3  Wash.  Tv.  27.1. 

v.  Laun.  8  Mont.  322. 

v.  M  ilr<  ". .  7  Mont.  559, 

v.  Pratt,  6  Dak.  483,   ' 

v.  Reberg,  6  Mom.  y ■-. 

v.  Scott.  7  Mont.  407. 

v.  Shearer.  2  Dak. 
Teters  \.  Hinder.-.  [9  [nd.  93,    274.   732 
Thacher  \  Jones,  31  Me. 


- 
592 

-3' 
3-4 
530 
345 
252 


cxx 


TABLE  OF  CASES. 


[References  a 

Thames   Loan,  etc.,  Co.  v.  Beville, 

ioo  Ind.  309,      159,  273,  292,  581,  704, 

71S.  764,  775 

Tharp  v.  Jarrell,  66  Ind.  52,  628 

Thatcher  v.  Humble,  67  ind.  444,      590 

v.  Ireland,  77  Ind.  4S6,  1S7 

Thayer  v.  Society,  etc.,  jo  Pa.  St.  60,  709 

v.  Burger,  100  Ind.  262,        293,  581 

Theirman  v.  Vahle,  32  Ind.  400,  71 

Thickstun   v.   Baltimore,  etc.,  Co., 

119 Ind. 26,  790 

Thiebaud  v.  Dufour,  57  Ind.  59S,  64,  219, 

229 
Thigpen  v.  Mundine,  24  Tex.  2S2,  671 
Third  Great  Western  Turnpike  Co. 

v.  Loomis,  32  N.  Y.  127,  517 

Thorn  v.  Savage,  1  Blackt".  51,  313 

v.  Wilson,  24  Ind.  323,  17') 

Thoma  v.  State,  86  Ind.  182,      105,  247, 

261,  276 
Thomas  v.  Anderson,  55  Cal.  43,         96 
v.  Dale,  S6  Ind.  435,  724 

v.  De  Gaffenraid,  27  Ala.  651,  555 
v.  Farley  Mfg.  Co.,  76  la.  735,  734 
v.  Georgia,  etc.,  Co.,  3S  Ga.  222,  324 
v.  Griffin,  1  Ind.  App.  4157,  64S, 

743.  76s,  766 
v.  Hamilton,  71  Ind.  277,  60S 

v.  His   Creditors,   1    Harr.  (N. 

J)  272,  T  435 

v.  Kelley,  27  111.  App.  491,  454 

v.  Merry,  113  Ind.  83,  285,  791 

v.  Musical,  etc.,  Union,  121  N. 
Y.  45,  217,591 

v.  Ruddell,  66  Ind.  326,  640 

v.  Schee,  So  la.  237,  624 

v.  Service,  90  Ind.  12S,  105,  266,  276 
v.  Simmons,  103  Ind.  53s,  357,  494 
v.  Wyatt,  9S.  &  M.  308,  272 

Thomason  v.   Odum,  31  Ala.  10S,    701 
v.  Wood,  42  Cal.  416,  475 

Thomlinson  v.  Briles,  101  Ind.  53S,  •,$(>. 

57'-'7"l 
Thompson,  In  re,  11  Paige,  453,  142 

Thompson  v.  Adams,  2  Ind.  151,         87 
v.  Adams,  82   Va.  672.  78 

v.  Butler,  95  U.  S.  694,  50,  51 

v.  Campbell,  52  Ala.  5S3,  133 

v.  Davis  29  Ind.  2'' ).  295 

v.  Deprez,  96  Ind.  67,  174 

v.  Doty,  72  Ind.  336,  504 

v.  Egleton,  ^  Ind.  300,  75S 

v.  Ellsworth,  1  Barb.  Ch.  624,     152 
v.  Erie,  etc.,  Co.,  45  N.  Y.  46S,  601 
v.  Erie,  etc.,  Co.,  9  Abb.  Pr.(N. 
Y.)  212,  697 

v.  Hawley,  16  Ore.  251,  491 

v.  Lassiter,  85  Ala.  223,  581 

v.  Lea.  28  Ala.   ^3,  323 

v.Lowe,  111  Ind.  272.  507,609 


re  to  Pages.] 

Thompson  v.  Lynch,  43  Cal.  4S2,      7S0 

v.  Lyon,  1  1  Cal.  39,  560 

v.  McKim,  6  Har.  ..v  J.  302,  21 

v.  Oskamp,  19  Ind.  399,  635 

v.  Pershing,  S6  Ind.  303,  533 

v.  Sanders,  11S  N.  Y.  252,  398 

v.  Shannon,  9  Tex.  536,  662 

v.  State,  29  Tex.  App.  20S,  761 

v.  Thompson,  9  Ind.  323,      572,  702 

v.  Thompson,  34  Ind.  94,  555 

v.Thompson,  24  Wis.  515,  ^2^ 

v.  Thornton,  41  Cal.  626,  513 

v.  Toohev,  71  Ind.  296,  398 

v.  Tracy,  60  N.  Y.  31,  -  441 

v.  United  States,  103  U.  S.  4S0,  436 

v.  Weeks,  32  111.  App.  642,  591 

v.  White,  iS  Ind.  373,  767 

v.  Wilson,  34  Ind.  94,  510,  613 

Thornton,  Ex  parte,  46  Ala.  3S4,       437 

Thornton  v.  Baker,  115  R.  I.  553,         126 

Thorp  v.  Reily,  57  N.  Y.  Sup.  Ct. 

589,  '  291 

v.  Hanes,  107  Ind.  324,  52 

Thorwegan  v.  King,  11 1  U.  S.  549,   572 

Thotwenin  v.  Rodiguez,  24  Tex.  468,  14S 

Thrasher  v.  Postel,  79  Wis.  503,         648 

Threishel  v.  McGill,  28  111.  App.  78,  680 

Thurston  v.  Boardman,  4S  Ind.  258,  268 

v.  Kennett,  22  N.  H.  151,  615 

Tibbetts  v.  O'Connell,  66  Ind.  171,  298, 

785 
v.  Penley,  83  Me.  1  iS,  62S 

Tice  v.  Hannibal,  etc.,  Co.,  35  Mo. 

4l6>  534 

Tichenor  v.  Tichenor,  45  N.  J.  Eq. 

664,  60 i 

Tierney  v.  Union  Lumber  Co.,  47 

WTis.  24S,  519 

Tiffany  v.  Gilbert,  4  Barb.  320,  392 

Tilghman  v.  Little,  13  111.  239,  56 

Tillinghast  v.  Nourse,  14  Ga.  641,  663 
Tilton  v.  Beecher,  59  N.  Y.  176,  519 
v.  Vail,  117  N.  Y.  520,  75 

Tillman  v.  Averett,  82  Cal.  576,  109 

Tilman  v.  Harter,  3S  Ind.  1,  76S 

Timmons  v.  McOnnoughhay,  S  Ind. 

483.  75° 

Tindal  v.  Drake,  60  Ala.  177,  9 

Tinder  v.  Association,  47  Ind.  351,  401 
Tipper  v.  Commonwealth,   1    Met. 

(Ky.)6,  765 

Tipping  v.  Robbins,  71  Wis.  507,  4S9 
Titus  v.  Relyea,  S  Abb.  Pr.  Rep.  177,  13 
Titusville  Iron  Works  v.  Keystone 

Oil  Co.,  130  Pa.  St.  211,  489 

Tobin  v.  Young,  124  Ind.  507,     34,  703 

Todd  v.  Daniel,  16  Pet.  521,        117.    139 

v.  Fenton,  66  Intl.  25,  694.  695 

v.  Jackson,  75  Ind.  272,         296,   297 

v.  Wilson,  80  Ind.  429,  276 


TABLE  OF  CASES. 


C  X  X  1 


\Referem  i  5  are  to  /' 


Daniels,  2 1  I  ml. 

689 

579,  698 
416,  587 

3961  735 
624 


Toledo,  etc.,  Co 

256 
v.  Goddard,  25  Ind.  185, 
v.  Levy,  127  Ind.  16S, 
v.  Milligan,  ^  Ind.  505, 
v.  Rathmann,  7S  Ia.'28S, 
v.  Rogers,  4S  Ind.  427.   754,  756,  757 
v.  Shuckman,  50  Ind.  42,  661 

v.  Tilton,  27  Ind. 71,  395 

Toledo,    etc.,   Works   v.   Work,    70 

Ind.  253,  399.63S 

Toler  v.  Keiher.  Si  Ind.  3S3,      575,  663, 

694,  695 
Tollen  v.  Read,  ^2  N.  V.  Supr.  46,  612 
Tomer  v.  Densmore,  S  Neb.  3S4,  786 
Tomkin  v.  Harris,  90  Cal.  201,  435 

Tomlinson  v.  Briles,  101  Ind.  538,     536, 

571,  704 
v.  Hamilton,  27   Ind    139,     393,  394 

662 


791 

521 
612 

266 


v.  Wallace,  16  Wis.  224, 
Toney  v.  Toney,  73  Ind.  34, 
Tooker  v.  Arnoux,  76  N.  Y.  397, 
Toome's,  Estate  of,  54  Cal.  509, 
Topeka,  etc.,  Co.  v  Martin,  59  Kan 

75°> 

Torr  v.  Torr,  20  Ind.  11S,  2S1,  524,  567 
Torry  v.  Robertson,  24  Miss.  192,  141 
Totten's  Appeal,  40  Pa.  St.  3S5,  546 
•Touchard  v.  Crow,  20  Cal.  1^0,  761 
Towell  v.  Hollweg,  Si  Ind.  154,  101, 
274,  413,  467 
Towles,  Ex  parte,  4S  Tex.  413, 
Towne  v.  Bossier,  19  La.  Ann 

v.  Wiley,  2^  Vt.  354, 
Towns  v.  Smith,  115  Ind.  4S0, 

v.  Stoddard,  30  N.  H.  23, 
Townsand  v.  Townsand,  21  111 
Townsend  v.  Chapin,  S  Blackf.  32S,  6S9 

v.  Davis,  1  Ga.  495,  272 

v.  Townsend,  60  Mo.  240,  4^8 

Tracewell  v.  Farnsley,  104  Ind.  497,  50S, 

562 
Tracev  v.  Altmj'er,  46  N.  Y.  t^S, 

v."  First  Nat.  Bank,  37    N.  Y. 

523. 

Tracy  v.  Holcomb,  24  How.  426, 
Traders  Ins.  Co.  v.  Carpenter,  S5 
Ind.  350,  12'  1.  287,  2i):^  451, 

v.  Newman,  120  Ind.  554, 
Train  v.  Gridlev,  36  Ind.  241 


162,  677 

589 

626 

64S 

149,  671 


664 

269 

499 


Trammel  v.  Chipman,  74  Ind. 


403i 


474- 
394 


v.  Simmons,  S  Ala.  271, 
Traphagen  v.  Levy,  45    X.  J.  Eq, 

448- 
Travelers  Ins.  Co.  v.  Leeds.  58  Ind. 

444- 
v.  Noland,  97  Ind.  217. 


456 
604 
637. 
7-7 
267, 
562 
1 1 1 

601 


756 

;r>2 


Traveler^,    etc.,   Co.  v.    Harvc. 

Va.  949,  7,,, 

Travis  v.  Travis,  48  Hun.  343.  320 

Travwick  v.  Martin  Brown  &  Co., 

71  Tex.  522,  159 

Tra\  ser  v.  Trustees  of  Indiana  A  3- 

bury  University,  39  Ind.  536,    38,  596 
Treadway  v.  Cobb,  io  Ind  ^9 

TreadweU  v.  Whittier.  So  Cal.  575, 
Treat  v.  Ililes,  75  Wis.  265,  -  7 

v.  Ililes,  77  Wis.  475,  ij- 

v.  Jamison,  20  Wall.  652,  266 

Trebby  v.  Simmons.  38  Minn.  508, 
Trega  v.  Pierce,  119  Pa.  St.  13 9, 
Trenholm  v.  Morgan,  2S  S.  C.268,  646 


Trentman  v.  Ed  ridge, 


9S  Ind.  52;. 

4°3- 

v.  Nell,  124  Ind.  503, 

v.  Wiley,  85  Ind.  33,  579, 

Trenton    Mutual    Lite    Ins.   Co.  v. 

Johnson,  24  N.J.  L.  576, 
Trew  v.  Gaskill,  10  Ind.  265, 
Tribble  v.  Poore.  28  S.  C.  565, 
Trickey  v.  Schlader,  52  111.  78, 
Trigg  v.  Taylor,  27  Mo.  245, 
Triggs  v.  Jones,  46  Minn.  277, 
Trimble  v.  Pollock,  77  Ind.  576, 
Tripp  v.  Elliott.  5  Blackf.  168,       45 

v.  Cook,  26  Wend.  143,        513, 

v.  Duane,  74  Cal.  S5, 
Tripp,  etc.,  Co.  v.   Martin   (Kan.), 

26  Pac.  Rep.  424, 
Trippe,  Ex  parte,  66  Ind.  531, 
Trisler  v.  Trisler,  54  Ind.  172, 
Trittipo  v.  Morgan.  99.  Ind.  269, 
Troost  v.  Davis,  31  Ind.  34, 
Trotter  v.  Neal,  50  Ark   340, 
Trout  v.  Small,  10  Ind.  3S0, 

v.  State,  107  Ind.  580, 

v.  West,  29  Ind.  51,  292, 

Troutman  v.  Neff,  124  Ind.  503, 
Trover  v.  State,  115   Ind.  331,     620, 


301, 

■      , 

549 
'54 
455 
127 
411 
733 
640 

•  5° 

7SS 
69 

716 


769 
40S 
718 

210 

7s" 
Trueblood  v.  Knox.  73  Ind.310,  306.  }07 

v.  Nicholson.  52  Ind.  420,  447 

Truelock  v.  Friendship  Lodge,  7<; 

la.  3S4, 
Truitt  v.  Baird,  12  Kan.  420, 

v.  Truitt,  37  Ind.  514, 

v.  Truitt,  38  Ind.  10,  160, 

Trullenger  v.  Todd,  5  Ore 
Trullinger  v.  Webb,  3  Ind 
Truman  v.  McCollum,  20  Wis.  360, 

v.  Scott.  72  Ind.  258,     123,  154. 

443< 

Truscott  v.  King,  6  N.  Y.  147,    414. 
Trustees  v.  Brooklyn  Fire  Ins., 
How.  Pr.  44S, 

v.  Greenough,  105  U.  S.  527, 

v.  Hihler,  85  111.  409, 

v.  Love,  29  111.  App.  615, 


445 

533 

53° 
4*3 
361, 

754 
593 

699 

11- 


CXX11 


TABLE  OF  CASES. 


[References  a 
Trustees,  etc.,  v.  Odlin,  8  Ohio  St. 
293, 

Trustees  ol  East  Hampton  v.  Kirk, 
68  N.  Y.  459. 

Trvon  v.  Baker,  7  Lans.  511, 

Tucker  v.  Call,  45  Ind.  31, 
v.  Constable,  16  Ore.  239, 
v.  Conrad,  103  Ind.  349. 
\.  Gordon,  7  I  low.  (Miss.)  306,    96 
v.  Henniker,  41  N.  H.  317,  622 

v.  Jones.  S  Mont.  225.  73S,  761 

v.  Leland,  75  N.  Y.  186,  514 

v.  Sandridge,  82  \*a.  532,  70 

v.  Smith.  68  Tex.  473,  762 

v.  South  Kingstown,  5  R.I.  55S,  621 


634 


550 
5§7 
7S5 
373 
274.  7\; 


v.  White,  19  Ind.  253,  101 

Tull  v.  David,  27  Ind.  377,  614 

Tull  v.  Pope,  69  X.  C.  1S3,  791 

Tupper  v.  Wise,  no  U.  S.  39S,  80 

Turnbull  v.  Ellis,  35  Ind.  422,  769 

Turner  v.  Althaus,  6  Neb.  57,  40 

v.  Armstrong,  9  Bradw.  24,  306 

v.  Booker,  2  Dana,  334,  141 

v.  Campbell,  59  Ind.  279,  566 

v.  Cool,  23  Ind.  56,  615 

v.  Fendall,  1  Cranch.  117,  509 

v.  First  Nat.  Bank,  26  la.  562,  635 

v.  First  Nat.  Bank,  30  la.  191,  458 

v.  Halm,  1  Col.  2^,  527 

v.  Hine,  37  la.  500,  447 

v.  Morrison,  n  Cal.  21,  788 

v.  Norton,  31  111.  App.  423,  591 

v.  People,  3^  Mich.  363,  745 

v.  Quinn,  92  N.  C.  501,  449 

v.  State,  40  Ala.  21,  119 

v.  White,  77  Cal.  392,  610 

v.  Yates,  16  How.  14,            200,  533, 

743-  761 
Tuskaloosa  Co.  v.  Logan,  50  Ala. 

503,  77° 

Tweed's  Case,  16  Wall.  504,  ^73 

Tweed  v.  Davis,  4  T.  &  C.  (N.Y.)  I,  438 

Twogood  v.  Franklin,  27  la.  239.  495 

Tyerman  v.  Smith,  6  E.  t\:  B.  719,  424 

Tvin  v.  Halstead,  74  N.  Y.  604,  514 

Tyler  v.  Bowlus,  54  Ind.  333,  7S5 

v.  Healev,  51  Cal.  191,  519 

v.  Waddingham,  58  Conn.  375,  713 

v.  Willis,  33  Barb'.  327.  398 

Tyrrell  v.  Baldwin,  78  Cal.  470.  445 

Tyson,  In  re,  13  Col.  4S2,  102 

v.  Milwaukee,  etc.,  Co.,  50  Wis. 

78,  483 

v.  Rickard,  3  Hair.  &  J.  109,  .  643 

v.  Tyson,  100  N.  C.  3C0,  6S3 

u 

E 'hi  v.  Bingaman,  78  Ind.  36*,.  661 

Uland  v.  Carter,  34  Ind.  344,  17S 


re  to  Pages.) 

L'lman  v.    Baltimore,  etc.,   Co..  72 

Md.  587.  121 

Ulrich  v.  Drischell,  SS  Ind.  354, 48S,  595 

v.  Ilervey.  26  Ind.  107,  i(>2 

Umlauf  v.  Umlaut",  103  111. 651,  79 

Underbill  v.  Dennis,  9  Paige,  202,      143 

Underwood  v.  McDuffie,  15  Mich. 

361,  7 

v.  Pack,  23  W.  Va.  704,  495 

v.  Riley,  19  Wis.  412,  481 

v.  Sample,  70  Ind.  446,  470 

In  fried  v.  Baltimore,  etc.,  Co.,  34 

W.  Ya.  260,  647 

Union,  etc.,  Co.  v.  Buchanan,  100 
Ind.  63,  554.  570,  577,  7<>° 

v.  Fray,  35  Kan.  700,  626 

v.  Moore,  80  Ind.  458,  536,  692 

Union  Bank  v.  Forrest,  3  Cranch. 
C.  C.21S,  102 

v.  Mott,  39  Barb.  180,  556 

v.  Mott,  27  N.  Y.633,  587 

ETnion  Nat.  Bank  v.  Kupper,  63  N. 

Y.  617,  190 

Union  Pacific  Ry.  Co.  v.  Botsford, 

11  Sup.  Ct.  Rep.  1000,  540 

Union    School    Tp.   v.    First   Nat. 

Bank,  102  Ind.  464,  470,  491,  492 

Union  Tel.  Co.   v.    Dickinson,   40 

Ind.  444,  72 

United  Lines  Tel.  Co.  v.  Stevens, 

67  Md.  156,  93 

United   States,  Ex  parte,   16  Wall. 

699.  439 

United   States   v.   Adams,  9   Wall. 

661,  182 

v.  Addison,  6  Wall.  291,  338 

v.  Armijo,  5  Wall.  444,  112 

v.  Arnold,  1  Gall.  348,  310 

v.  Arredondo,  6  Pet.  691,  12 

v.  Barnard,  1  Ariz.  319,  676 

v.  Bassett,  21  How.  412,  3S8 

v.  Boyd,  5  How.  29,  638 

v.  Boyer,  7  Fed.  Rep.  193,  529 

v.  Boutwell,  17  Wall.  604,  440 

v.  Breitling,  20  How.  252,  727 

v.  Bromley,  4  Utah,  498,  679 

v.  Burroughs,  3  McLean,  405,  674 
v.  Carey,  no  ET.  S.  51,  743,  757 
v.  Colt,  Peters,  C.  C.  145,  35 

v.  Curry,  6  How.  106,  91,  104,  128 
v.  Davis,  6  Blatch.  464,  250 

V.  Drapier,  iS  Wash.  L.  J.  532,  314 
v.  Duff,  6  Fed.  Rep.  45,  696 

v.  Edwards,     etc.,     Comrs.,    5 

Wall.  563,  435 

v.  Emholt,  105  U.  S.  414,  21 

v.  Ferreira,  13  How.  40,  n,  5 

v.  Gibert,  2  Sumn.  19,  699 

v.  Gomez,  1  Wall.  690,  97,  98,  104 
v.  Gomez,  3  Wall.  752.  439 


TABLE   OF  (J  ASICS. 


C  X  X  .  1 1 


f  Referent  es  a 
United  States  v. Groesbeck,  \  Utah, 

487»  -'5-\  679 

v.  Guthrie,  17  How.  284,  435 

v.  Hawkins,  10  Pet.  1^5,  714 

v.  Hoskins,  5  Mackey,  47S,  2-17 

v.  Hudson,  7  C ranch.  34,  7 

v.  Jarvis,  3  Wood  &  M.  225,       750 

v.  Kirbv,  7  Wall.  482,  105 

v.  Knight,  1  Black,  4S4,  451 
v.  Knox  County,  39  Fed.  Rep. 

757,  462 

v.  Mc Masters.  4  Wall.  6S0,  731 

v.  Mingo,  2  Curtis  C.  C.  1,  534 

v.  Morillo,  1  Wall.  706,  444 

v.  Neverson,  1  Mackey,  152,  531 

v.  Norton,  91  U.  S.  1566,  232 

v.Parrott,  Mc  All  (U.S.),  447,  163 

v.  Phillips,  6  Pet.  776,  125,  444 

v.  Rickett,  2  C ranch.  C.C.5<53,  311 

v.  Sacramento,  2  Mont.  239,  415 

v.  Salentine,  S  Biss.  404,  579 
v.  Schooner  Peggy,  1   Cranch. 

I03-  73 

v.Tenney  (Ariz.),SCrim.  Law. 
Mag.  486,  577 

v.  Winchester,  2  McLean,  135,  697 
v.  Wonson,  1  Gall.  (U.  S.)  5,  15 
v.  Yates,  6  How.  605,  444,  633 

United   States   Bank   v.   Smith,    11 

Wheat.  171.  392,  644 

United   States,  etc.,   Co.  v.  Martin, 

43  Ka»-  526i  155 

v.  Rawson,  106  Ind.  215,  395 

University  v.  Bank,  92  N.  C.  651,  74 
Untereiner  \.  Miller,  29  La.  Ann. 

435-  91 

t  in uh  v.  State,  105  Ind.  117,  2^2 

I'rbanski  v.  Manns.  S7  Ind.  585,  179 

Urton  v.  Luckev,  17  Ind.  213,  768 

Urochlan  Tp.  Road,  30  Pa.  St.  157,  61 

V 

Vail  v.  Dining,  44  Mo.  210,  431 

v.  Halton,  14  Ind.  344,  10S 

v.  Jones,  31  Ind.  467,  420 

v.  Lindsay.  67  Ind.  52S,         112,    142 

v.  McKernan,  21  Ind.  421,  $$3 

v.  Owen,  19  Barb.  22,  286 

v.  Rinehart,  105  Ind.  6,  635 

Valle  v.  Harrison,  93  U.  S.  233, 

Valencia  v.  Couch,  t,2   Cal.  339.  52  } 

Vallette  v.  Whitewater,  etc.,  Co.,  4 

McLean,  192,  601 

Van  Allen  v.  Spadone,  16  Ind.  319,  ^20 
Van  Brunt  v.  Greaves,  ^:  Minn.  68,  677 
Van  Cleve  v.  Boler,  34  Ind.  538,  27O 
Van  Dusen  v.  Kendleburger/44  Ind. 

2S2.  j,  s 

Van  Hook  v.Whitlock,  26  Wend.  43.  41  • 


re  to  Images.) 

Van  Leuven  v.  Lyke,  1   X    Y 
Van  Marks   v.    Ilotchkisv,  .,    Abb. 

Dec.  484, 
Van  Meter  v.  Barnett,  119  Ind.  35, 
Van  Neste  \ .  Conover,  =;  How.  Pr. 

(O.  S.)  14S, 
Van  Nest  v.  Latson,  19  Barb.  C04. 
Van  Orman  v.  Merrill,  27  la.  47^. 
Van  Reinsdyk  v.  Kane.  1  Gall. 371. 
Van  Sickle  v.  Erdelmeyer,  36  Ind. 

262, 
Van    Slyke  v.   Schneck,   10  Paige, 

301, 

v.  Trempealeau,    etc.,    Co.,   39 

Wis.  390, 
Van  Steenwyck  v.  Miller.  18  Wis. 

3-°> 
Vance  v.  Cowing,  13  Ind.  460, 
v.  Schayer,  76  Ind.  194, 

v.  Vance,  74  Ind.  370. 
Vandall  v.  Vandall.  13  la.  247. 
Vandercook  v.  Williams,  106  Ind. 

345-  9< 

Vanderkarr  v.  State,  51  Ind.  91, 

161,  164,  172. 
Vanderpool  v.  Valkenburgh.  6   N 

V.  190, 
Vanderveer   v.    Holcomb,  17  N.  J. 

Eq.  547. 
\  andevoort  v.  Gould.  36  N.  Y.  639. 
Vandivens  v.  Dollins.  49  Ind.  216, 
Vandoren  v.  Kimes,  29  Ind.  582, 
Vanliew  v.  State,  10  Ind.  3S4, 
Vann  v.  Rouse,  94  N.  Y.  401, 

v.  State,  S3  Ga.  44,  530, 

Vanness  v.  Bradley.  29  Ind.  3S8. 
Vannoy  v.  Duprez,  72  Ind.  26, 

v.  Klein,  122  Ind.  416,  660, 

Vansittart  v.  Taylor,  4  E.  &  B.  911  . 
Vantilburgh  v.  Shann,  .\  Zabr.  740. 
Vanvabry,  In  re.  v.  Staton,  88Tenn. 

334' 
\  anvalkenberg  v.  Vanvalkenberg, 

90  Ind.  433.  1(7.  291, 

Varn  v.  \\  illiams,  30  S.  C  ■ 
Varnum  \'.  Hart.  47  Hun.  18, 
Vass  v.  Commonwealth,    3    Leii,rh 

7SC. 
\'as^c  \-.  Smith.  6  Cranch.  225. 
Vater  v.  Lewis.  36  Ind.  2$ 
Vawter  v. Gillilar.d,  55  Ind.  27S 
Vaughan  v.  Ferrall,  50  Ind.  221. 

v.  Godman,  103  Ind.  499. 
Vaughn  v.  Harp,  49  Ark.  160,  9. 

Veachv.  Pearce,  6  Ind.  4S. 
Veatch  V.  State.  60  Ind.  291,        231. 
Venable  v.  Bank.  :  Pet.  107. 
Veneman  v.  McCurtain  1  Nel 

N.  W.  Rep.  955, 
Wrbeck  \.  Verbeck.  (    Wis.  1^7. 


58l 

;l 

601 


94 
648 

81 
480 
639 


.  59, 

<>oi 

■    :< 

I69 
576 
715 

73- 

1-4 

440 

;7t 
453 

785 

Is" 

37 

54'  l 

601 

769 


CX  XIV 


TABLE  OF  CASES. 


[References  a 

Verger  v.  Roush,  i  Neb.  113,  9- 

VermilHon  v.  Nelson,  87  Ind.  194,  775 
Vermilya  v.  Davis,  7  Blackf.  158,  630 
Vermilye  v.Vermilye,  32  Minn.499,  73 
Veronee  v.   Bell   (S.  C),   J-   s-  E-       . 

Rep.  664,  44<> 

Very  v.  Watkins,  23  How.  469,  509 

Vick  v.  Maulding,  1    How.  (Miss.), 

217,  349 

Vickers  v.  Leigh,  104  N.  C.  24S,  55° 
Vickeryv.  McCormick,  117  Ind.  594, 703 
Viele  v   Germania  Ins.  Co.,  26  la. 

615,616 

Vie'ra   v.    Dobyns  (Cal.),   24   Pac. 

Rep.  1S1,  £  tt        447 

Villabolos  v.  United  States,  6  How. 

81,  92 

Vincennes,  etc.,  Co.  v.  White.  124 

Ind. 376,  J60 

Vincent  v.  Evans.  1  Met.(Ky.)  247.  obi 
Vinton  v.  Baldwin.  95  Ind.  433.  7°^ 

Virginia  Comm'rs,   Ex    parte,    112 

U.S.  177,  „       «S 

Vitoreno  v.  Corea  (Cal.).  25  lac. 

Rep.  420,  447 

Vitrified,  etc.,  Co.  v.  Edwards.  135 

Mass.   591,  525 

Vizzard  v.  Taylor,  97  Ind.  90,  154 

\  ogel  v.  Harris,  112  Ind.  494,    537,  75° 
v.  State,  107  Ind.  374,  xoi 

Voiles  v.  Voiles.  51  Ind.  3S5,  349 

Volger  v.  Sidener,  86  Ind.  545,      ^    759 
Volkening  v.   De  Graaf,  81   N.  Y. 

268,  0  S2l 

Voltz  v.  Newbert,  17  Ind.  1S7,   521,  62b 
Vonderweit  v.  Centerville,  15  Ind. 

447.  46 

Von  Glahan  v.  Von  Glahan,  40  111. 

73-  l84 

Voorhees  v.  Hank,  10  Pet.  449,  12 

v.  Earl,  2  Hill.  28S,  589 

v.  Jackson,  10  Pet.  449,  670 

Vose  v.  Cockcroft,  44  N.  Y.  415,  4H 

v.  Muller,  23  Neb.  171,  °2° 

v.  Phillbrook,  3  Story,  335,  601 

Voss  v.  Eller,  109  Ind.  260,  7Sl 

Vreton  v.  Beltzore,  17  Neb.  399,  751 

W 


Waarich  v.  Winter,  33  Ill.App.36,  554 

Wabash,  etc.,  Co.  v.  Goodwine,  iS 

Bradw.  65,  35° 

v.  Nice,  99  Ind.  152,  395,  7S5 

v.  People,  io6  111.  652,  765 

v.  Rookes,  90  Ind.  581,  .      4lS 

v.  Tretts,  96  Ind.  4^0.  692 

Wabash  Rx.Co.x.  Savage,  no  Ind. 

156,  667 


re  to  Pages.] 
Wabash    Ry.   Co. 

104  Ind.  154, 
Wachendorf  \ 


Williamson, 

4S0,  643 
Lancaster,  61    la. 

509, 
Wachstetans  v.  State.  42  Ind.  166, 
Wachstetter  v.  State,  97  Ind.  378, 


17" 
3*« 
5*7. 
537 


Waddle  v.  Harbeck,  33  Ind.  231, 

v.  Magee,  Si  Ind.  217. 
Waddingham  v.  Waddingham,  27 

Mo.  App.  596, 
Wade  v.  First  Nat.  Hank,  11  Bush. 
697, 

v.  Bryant  (Ky.),  7  S.  W.  Rep. 

597, 

Wadkins  v.  Hill,  106  Ind.  543, 

Wafer  v.  Ilamill,  44  Kan.  447, 

Wagar  v.  Peak,  22   Mich.  368, 

Wagner  v.  Kastner,  79  Ind.  162, 

\ .  State,  116  Ind.  iSl, 

v.  Wagner,  73  Ind.  135, 

v.  Winton,  122    Ind.  57. 

v.  Winter,  122   Ind.  57,         2 

Waggoner  v.  Eiston,  37  Ind.  357. 

Wagoner  v.  Wilson,  10S  Ind.  210, 

Wainright    v.    Burroughs,    1     Ind, 

App.  393,  7°9 

Wainscott  v.  Silvers,  13  Ind.  497 


597 
ci8 


34° 


757 
399 
7S1 
770 
45,  50 
610 

396 
416 

16,  527 

789 

772 


718 

-95 


Wait  v.  Van  Allen,  22  N.  Y.  319,  61,^91 


Wakeman  v.  Jones,  5  Ind.  454, 
Walburn  v.  Babbitt,  16  Wall.  577, 

Walden  v.  Bodley,  14  Pet.  156, 
Waldo  v.  Richter,  17  Ind.  634, 
Waldhier  v.  Hannibal,  etc.,  Co.,  71 

Mo.  514. 
Wales  v.  Miner,  S9  Ind.  11S, 
Walker  v.  Davis,  1  Gray,  506, 
v.  Dunspaugh,  20  N.  Y.  170, 
v.  Granite  Bank,  19  Abb.  Pr. 


111 


7-9 
571- 
574 

573 
300 

5S7 
744 
588 

537 
696 


v.  I  [eller,  73  Ind.  46,    299,  335,  606 

786 
v.  Hill,  in  Ind.  223,     108,  124,  154, 
171,  274,  361,  443 


v.  Houlton,  5  Blackf.  34S, 
v.  Johnson,  96  U.  S.  424, 
v.  Larkin,  127  Ind.  100, 
v.  Owen,  79  Mo.  563, 
v.  Popper,  2  Utah,  96, 
v.  Scott,  102  N.  C.  487, 
v.  Scott,  106  N.  C.  56, 
v.  Sprncer,  86  N.  Y.  162, 
v.  State,  91  Ala.  32, 
v.  State,  23  Ind.  61, 
v.  State,  26  Ind.  346, 
v.  State,  102  Ind.  502 


675 

573 
566 
411 

735 


400 
64 
663,  747 
-31 
541 
1S1,  1S2,  S3°> 
678 
v.  State.  9  Tex.  App.  200,      7&1 


TABLE  OF  CAMS 


CX  XV 


A\  i,  rences  are  to  Pages.] 


Walker  v.  Steele.  (21  Iiul.   (.36,      i}.  219, 
221,  2 


r'3 ' 

5° 
621 

535 
345 
490 

597 
79 < 

453 

421 

506,  570 

66 


274- 


94- 


v.  Turner,  27  Neb    ' 

v.  United  States,  1  Wall.  [82, 

v.  Walker,  1 1  ( ra.  20  \. 

v.  Walker.  1  (  Ga.  2  )--. 
Wall  v.  Bagby,  [26  [nd.  37 

v.  Dodge,  3  U  tah.  [68, 

v.  Galvin,  80  I  nd.  \  \7. 

v.  State.  So  Ind.  1  \6, 
Wallace  v.  Cart./,  32  S.C.314, 

v.  Cox,  71  111.  548, 

v.  Cravens,  34  lnd.  534, 

v.  Douglas,  [05  N.  C.  42, 

v.   Exchange    Bank,    120   Ind. 
265.  746,  7S2 

V.  Harris,  32  Mich.  380, 

v.  Kirtley,  9S  Ind.  4S5, 

v.  McVey,  6  Ind.  300, 

v.  Morss,  5  Hill.  391, 

v.  Stutsman,  6  Dak.  I, 

v.   Taunton    St.   Ry.   Co.,    119 
Mass.  91, 

v.  Tumlin,  42  Ga.  462, 

V.  Wilder,  13  Fed.  Rep.  707, 

v.  Williams,  59  Hup..  628, 
Waller  v.  Wood.  IOI  Ind.  13S, 
Walling  v.  Beers,  120  Mass.  54S, 

v.  Burgess,  122  Ind.  299,      50S,  562 
Wallis   v."  Anderson,  etc.,  Co.,  60 
Ind.  s6,  [59,  296,  764 

v.  Randall,  Si  N.  Y.  164, 

v.  Thomas,  7  Yesey,  292, 
Walls,  Ex  parte,  73  Ind.  95, 
Walls  v.  Baird,  91   Ind.  429, 

v.  Johnson,  id  Ind.  374, 

v.  Palmer,  64  Ind.  493,  335,  434,  462 
Walpole,  In  re,  84  Cal.  584,  SS 

Walpole  v.  Carlisle,  32  Ind.  415,        790 

v.  Smith,  4  Blackf.  304,    115,  141,  59S 


412 

6S7 

Ss: 
5S7,  588 
499 


537 

693 

3" 

746 

62 

631 


702, 
7X4> 


39 
180 

74S 

274 

54 


74* 
617 

539 

92 

291, 


Walsh  v.  Kelly,  40  N.  Y.  556, 
v.  People,' SS  N.  Y.  458, 
v.  Sayre,  52  How.  Pr.  334, 
v.  United  States,  23  Ct.  of  CI.  1, 

Walter  v.  Walter,  117  Ind.  247, 

745-  75- 

Walters  v.  Jordan,  13  Ired.  L.  361,    570 
v.  Tefft,  57  Mich.  390.  665 

Walton  v.  United  States,  9  Wheat. 
651,  7r,i 

Waltz  v.  Barroway.  25  Ind.  380,         672 
v.  Waltz,  84  Ind.  403,  567 

Wannack  v.  Mayor,  etc.,  53  Ga.  162,  572 

Wampler  v.  State,  2S  Tex.  A  pp.  352,  254, 

754 

Wanata,  The,  5  Otto,  600,  311 

Wangerien v.  Aspell,  47  Ohio  St. 250, 123 

Wann  v.  McGoon,  2  Scam.  74.  638 


Wanser  v.  Atkinson  43  N.J.  L.  571, 
Warbritton  v.  Cameron,  u>  Ind.  302, 
Warburton  v.Cranch,  to8  Ind. 
Ward  v.  Angevine,  46  I  ml.  415,    69,767 

v.  Bateman,  34  Ind.  1 1<>.       7', 

v.  Buell,  18  Ind.  104.      30S.  309 

v.  Busack,  46  Wis.  4 « > 7 .         581 

v.  Clay,  82  Cal.  502, 

v.  Jewett,  1  Robt.  714,  617 

v.  Kalfleish,  21  How.  Pr.  283,      5157 

V.  Maryland.  [2   Wall.  163.  388 

v.  Montgomery,  ,7  Ind.  276, 

v.  People,  [3  fll.635,  3°3 

v.  Ringo,  2  Tex.  (.20,  560 

v.  Southfield,  Town  of.   102   N. 

Y.  287,  455 

v.  State,  4S  Ind.  2S9, 
v.  Thompson.  4S  la.  5SS.  71s 

v.  Voris,  117  Ind.  368,  791 

v.  Washington  Ins.  Co..  6  Bosw. 

229,  549 

v.  Wilms   (Col.),  27  Pac.  Rep. 

247-  73s 

v.  Woodburne,  27  Barb.  340.        54 

Ware  v.  Henderson,  25  S.  C.  3S5,  392 
v.  Morris,  42  La.  Ann.  760,  123 

v.  Ware.  S  Me.  42,  529 

Waring  v.  Gilbert.  25  Ala.  295.  4S} 

v.U.  S.Tel.  Co:.  4  Daly,  233, 

Warner  v.  Cammack,  37  la.  642.  589 
v.  Campbell,  39  Ind.  409.  177.  |' ■; 
v.  People,  2  Denio,  272.  3 

v.  State,  114  Ind.  137,  622 

v.  Warner,  11  Kan.  [21,  (>$$ 

v.  Whittaker,  6  Mich.  133,  557 

Warrall  v.  Parmelee,  1  Comst.  519,  657 

Warren  v.  Crane.  50  Mich.  300,  631 
v.  Henly,  31  la.  31,  30 

v.  Sohn,  112  Ind. 2 13,  74s 

Warrick,  etc.,  Co.  v.   Hougland,  90 
Ind.  [i 5,  18S 

Warsaw.   Citj    of,  v.    Dunlap,    112 
Ind.  576,  301.  397 

War-on  v.  McElroy,  33    Mo.   App. 

553. 
Wartena  v.  State.  105  Ind.  445,  248,  533 
Washburn  v.  Board,  104  Ind.  321.     645 
v.  Kline.  47    Ind.  12S,  11S 

v.  Milwaukee,  etc.,  Co.,  58  Wis. 
516, 

v.  Milwaukee, etc., Co., 59  ^  is. 
379,  120 

v.  Roberts,  72  Ind.  213.  398,  511,  638 
Washburn,  etc..  Co.  v.  Chicago,  etc.. 

Co.,  119  111.  30,  4^9 

Washer  v.  Allensville,  etc.,  Co.,  Si 

Ind.  78,  6S3 

Washington  v.  Eaton.  4  Cranch.  C. 
C.352,  35 


CX  XVI 


TABLE  OF  CASES. 


Reft  fences  are  to  /' 


Washington    v.   Louisville,  etc..  34 

\|o.  65S,  545.  655 

Washington   Bridge  Co.   v.   Stew- 
art, 3  How.  413,  498 
Washington   Ice   Co.  v.  Lay,    103 

[nd  162,  766 

Washington,  etc.,  Co.  v.  Colton,  26 

Conn.  42.  310 

Washington    County   v.   Durant,  7 

Wall.  694,  104 

Wasson  v.  Hodsire,  10S  Ind.  26,         569 

v.  First  Nat.  Bank,  107  Ind.  206,  470 

Wassum  v.  Feeney,  121  Mass.  93,      648 

Waterman  v.  State,  116  Ind.  51,        253. 

255,  620 
Watertown  Bank  v.  Mix,  51  N.  Y. 

558,  619 

Watertown  Nat.  Hank  v.  Ilolabird 

(S.  Dak.),  49  N.  W.  Rep.  9S,  452 

Watkins  v.  Holman,  16  Pet.  25,         420 

v.  Mason,  11  Ore.  72,  74,     84 

v.  State,  6S  Ind.  427.  217 

Watson,  Ex  parte,  3  Pet.  193,  12 

Watson  v.  Avery,  3  Bush.  635,  4S9 

v.  Camper,  119  Ind.  60,  52 


46, 


v.  Crowsore,  93  Ind.  220, 
v.  Mercer,  S  Pet.  SS, 
v.  Piel,  58  Ind.  566, 
v.  Smith,  2S  Tex.  App.  34, 
St.  Paul,  etc.,  Co.,  42  Minn. 


536 

61 

296 

743 


5291 


623 

53 1 

590 
496 

561 
619 
760 


/' 

529 

271 

325 

535 


State,  63  Ind.  548, 

v.  Sutherland,  5  Wall.  74, 

v.  Trustees,  2  Jones.  211, 

v.  Van  Meter,  43  la.  76, 

v.  Walker,  23  N.  II.  471, 

v.  Watson,  53  Ark.  415, 

v.  Whitney,  23  Cal.  375, 

v.  Williard,  9  Pa.  St.  89, 
Watson,  etc.,  Co.  v.  Casteel,  73  Ind 

296, 
Watt  v.  Alvord,  25  Ind.  533, 

v.  Alvord,  27  Ind.  495,  169,  171 

v.  De  Haven,  55  Ind.  12S,  782 

Watts  v.  Pitman,  125  Ind.  16S,  2SS,  520 

v.  Green,  30  Ind.  9S,  295 

v.Julian,  122  Ind.  124,  596,  712 

v.  State,  33  Ind.  237,  37S 

Waugh  v.  Waugh,  \-  Ind.  580,  63S 

Waxel  v.  II. unman,  35  111.  App.  571,265 
Way  \.  Fravel,  6i  Ind.  162,  601 

v.  Le\\i>.  115  Mass.  26,  31S 

Wayman  v.  Southard.  10  Wheat.  1,  217 
Waymire  v.  Lank.  121  Ind.  1,  624,702, 

7J4.  739 
\\'a\  ne    County    Turnpike    Co.    v. 

Berry,  5  Ind.  286,  509.  -:''s 

Wearen  v.  Smith.  80  Kv.  216,  71 

Weatherby  v.  Higgins,  6  Ind.  73.      694 


Weatherhead  v.  Bray,  7  Ind.  706, 
r  v.  Kintzley,  58  la.  191, 
v.  State.  83  Ind.  542, 
\ .  State,  24  Ohio  St.  5S4, 
v.  Templin,  1 13  Ind.  29S,    9,  5S,  63, 

479.  -^s 
v.   Trustees,  etc.,  28  Ind.  112, 
v.  Van  Akin.  77   Mich.  588, 
Webb  v.  Carr,  7S  Ind.  455, 

v.  Portland,  etc.,  Co.,  3  Sumn 
C.  C.  189, 

v.  Simpson,  105  Ind.  327,    222,  225, 

22ft 
v.  State,  29  Ohio  St.  351, 
Webber  v.   Bueger   (Col.),   27  Pac. 
Rep.  S71, 

v.  Wilcox.  4:5  Cal.  301, 
Weber  v.  Tschetter   (Dak.),  46  N. 

W.  Rep.  201, 
Webster  v.  Bebinger,  70  Ind.  9,  608,  695 
v.  Buffalo  Ins.  Co.,  no  U.  S. 

3S6, 

v.  Calden,  55  Me.  165, 
v.  Spindler,  36  Mo.  App.  355, 
v.  Tibbits,  19  Wis.  439, 
Webster,  etc.,  Co.  v.  St.  Croix  Co.. 

63  Wis.  647, 
Weed  v.  Weed,  25  Conn.  337, 
Weed,  etc.,  Co.  v.  Philbrick,  70  Mo. 

646, 
Weeden  v.  Richmond,  9  R.  I.  128, 
Weichselbaum  v.  Curlett,  20  Kan. 

709, 
Weik  v.  Pugh,  92  Ind.  3S2,  510,  537,  613 
Weil  v.  Cavins,  74  Ind.  265,  219 

Weir  v.  Burlington,  etc.,   Co.,    19 
Neb.  212,  168 

v.  St.  Paul,  etc.,  Co.,  iS  Minn. 
1.55.  2°7 

v.  State,  96  Ind.  311,     507,  562,  606, 

609 
Weir  Plow  Co.  v.  Walmsley,   no 

Ind.  242,  678,  771 

Weis  v.  City  of  Madison,  75  Ind. 

241,  4S0,  744 

Weiser  v.  Day,  77  Iowa,  25,  146 

Weiss  v.  Guerinean,  109  Ind.  43S,       504 

Welborn  v.  Sheppard,  5  Ala.  674. 

Welch  v.  Bowen,  103  Ind.  252. 

v.  Bowman,  103  Ind.  252, 

v.  Taverner,  7S  la.  207. 

v.  Wetzell  Co.,  29  W.  Va.  63, 

Wellington,  In  re,  16  Pick.  07, 

Wells  v.   Burlington,  etc.,  Co.,   56 

la.  520, 
Well's  Case,  2  Greenl.  (Me.)   ^22. 
Wells  v.  Dickey,  15  Ind.  361, 
Wells,  Estate  of.  v.  Wells.  71   Ind. 
509-  773 


301 
646 
531 

534 


597 

596 

41S 

561 


535 

207 

S6 

495 


J34 

765 

98 

732 

61 

180 

523 
392 

34 


671 

5J3 

62 

620 

5!7 
2S 

770 
230 
403 


TABLE  OF  CASES. 


CXXVll 


l\.  ferences 
Wells  v.  Kavanaugh,  74  [a.  372,        700 

v.  Lea,  jo  Mo.  App.  352,  159 

v.  McGeoch,  71  Wis.  1 

v.  Waterhouse,  22  Me.  131.  670 
Welsh  v.  Childs,  17  Ohio  St.  319,      672 

v.  State,  126  Ind.  71,    2  ,,3.  665,  6S1, 

6S9 

v.  State,  25  N.  E.  Rep.  SS3,  27 

Werborn  v.  Pinnev,  76  Ala.  291,  493 
Werner  v.    O'Brien,  40   Mo.   App. 

483,  571 

Wesley  v.  Milford,  41  Ind.  413,  26S,  269 
Wessels  v.  Beeman,  66  Mich.  343,    7;;. 

756 

West  v.  Camden,  135  U.  S.  507,         570 
v.  Cavins,  74  Ind.  265,         213,  22 2, 
244.  3<>Oj  345-  443-  7SC> 
v.  Miller,  125  Ind.  70,  596 

v.  Shryer,  29  Ind.  624,  596 

v.  State,  2  Zabr.  212.  674 

v.  WMlliamson,  1  Swan.  277,  672 
West   Coast,  etc.,  Co.  v.  Newkirk, 

So  Cal.  275,  567 

Westbrooke  v.  Wicks,  36  la.  3S2,  434 
Westcott  v.  Huff,  18  Ind.  245,  556 

Westfall  v.  Stark,  24  Ind.  377,  394,  396 
Westerfield  v.  Spencer,  61  Ind.  339,  299, 

7S6 
Western  Union  Tel.  Co.  v.  Brown, 
10S  Ind.  53S,  19.  475,  709,  74S 

v.  Buskirk,  107  Ind.  549,  534 

v.  Fenton,  52  Ind.  1,  405 

v.  Frank,  85  Ind.  4S0,  1S7,  300 

v.  Hamilton,  50  Ind.  1S1,  469 

v.  Kilpatrick,  97   Ind.  42,     279,  373, 

v.  Locke,  107  Ind.  9,    63,  64,  65,  84, 

697 
v.  Rogers,  93  U.  S.  565, 
v.  Scircle,  103  Ind.  227, 
v.  Trissall,  9S  Ind.  566, 


50 

35,  -17 
6S7.  725, 

745-  749 
Western,  etc.,  Co.  v.  Central,  etc., 
Co.,  116  Ind.  229. 
v.  State,  69  Ga.  524. 
v.  Stndebaker,    etc.,    Co.,     124 
Ind.  176, 
Westminister,  City  of,   v.   Shipley, 

6S  Md.  610, 

Westmoreland  Co.  v.  Conemaugh 

Tp..  34  Pa.  St.  231,  91 

v.  Overseers,  34  Pa.  St.  232.  61 

Weston  v.  Charlestown.  2  Pet.  449,     73 

v.  City  Council,  2  Pet.  449.  16 

v.  Johnson,  4S  Ind.  1,  6S7,   789 

Wetherbee  v.  Dunn.  32  Cal.  106,       109 

Wetherill  v.  Langs  ton,  1   Exch.  644,  602 

Wetmore  v.  Plant,  c  Conn.  541,         271 

Wetzler  v.  Duffy,  7^  Wis.  170.  544 


<ir.  to  Pages.] 

Weymouth  v.  Gregg    Mich.).  41  N. 

W.  Rep.  243. 
Whalen  v.  Chicago,  etc..  Co..  7;  la. 

421, 
Whaley  v.  Charleston,  S  S.  C.344. 
v.  Gleason,  40  Ind.  405.        769, 
Wheeler  v.  American   Central  Ins. 
Co.,  6  Mo.  App.  235, 
v.  Edinger,  11  la.  409, 
v.  GotYe,  24  Tex.  060, 
v.  Harris,  13  Wall.  51, 
v.  Me-shing-go-me-sia,  30  Ind. 
402. 

v.  Reitz,  92  Ind.  379, 
v.  Schroeder,  4  R.  I.  3S3, 
v.  State,  8  Ind.  113, 
Wheeler,  etc.,  Co.  v.  Burklingham, 

137  Mass.  5S1, 
Wheelock  v.  Henshaw,  19  Pick.  341. 
Whelchell  v.  State,  2^  Ind.  S9, 
Whidden  v.  Seelye,  40  Me.  247, 
Whipley  v.  Flower,  6  Cal.  630, 

v.  Mills,  9  Cal.  641,  153. 

Whipperman    v.    Dunn,     124    Ind. 

349'  4<>7>  4SS, 

\\  hippie  v.  Shewalter,  91  Ind.  114, 
Whisler  v.  Lawrence.  112  Ind.  229, 

Whistler  v.  Teague,  66  Ind.  565, 
Whitaker  v.  Gee,  61  Tex.  217, 
Whitcomb  v.  Smith,  123  Ind.  329, 
White  v.  Allen,  9  Ind.  561,         354, 
v.  Bailey,  14  Conn.  271, 
v.  Behan,  So  Ind.  239, 
v.  Burkett,  119  Ind.  431,      43S, 
v.  Butcher,  97  X.  C.  7, 
v.  Carlton,  52  Ind.  371, 
v.  Chicago,  etc.,  Co.,  122   Ind. 
3*7. 

v.  Clawson,  79  Ind.  iSS, 

v.  Gilbert,  10  Xeb.  539, 

v.  Gregory,  126  Ind.  95,       6S3, 


59- 
459 

791 


v.  Harvey,  2^  Ind.  55, 

v.  Miller'.  47  Ind.  385, 

v.  Milwaukee,  etc..  Co.,  61  Wis. 

53<3, 

v.  Morris.  107  X.  C.  92, 

v.  People,  90  111.  117. 

v.  Perkins,  10  Ind.  358, 

v.  Poorman.  24  la.  10S, 

v.  State,  69  Ind.  273. 

v.  Stellwagon,  54  Ind.  1S6, 

v.  Van  I  louten.  ^  1    Mo.  577, 

v.  United  Stales,  1    Wall.  660, 

White    Water   Valley,  etc..   Co.  v. 
Comegys,  2  I  ml.  j.6 1. 

White  Water,  etc.,  Co.  v.  McClure, 
29  Ind.  5 


4" 
284 
180 

507 

- 

643 

744 

20S 
192 

579 

57o 
666 

44S 

736 
76S 
16S. 
6S2 
53' 
74 
7i3 
359 
7H 
690 

59- 
491 

614 

506 

10S 

9i 

6S5. 

75S 

70 

39S 

539 
630 

534 
781 

4S3 
59- 

54 
439 

614 


cxxvin 


TABLE  OF  CASES. 


ffi  ferences  a 

White  Water  R.  R.  Co.  v.  Budgett, 
94  I  ml.  216,  571 

Whitefi<  Id  v.  (  'm  :<  :r,  3  Baxt.  78,  4.34 

Whiteford  Tp,  v.  Probate  Judge,  ■;$ 
Mich.   [30,  148 

Whitehead  v.  Boorom,  7  Bush.  399,  340 
v.  Mathowaj  .  85  End.  S5, 
v.  Scott,  1  Mood.  &  R.2,  697 

v.  Thorp.  22  la.  4.25,  312 

Whitehurst  v.  Pettipher,   105  N.  C. 

39.  1-54.  750 

Whitelaw  v.  Whitelaw,  83  Va.  40,     61S 

Whitewell  v.  Emory,  3  Mich.  84,        178 

Whiting  v.  Bank,  13  Pet.  6,  73,  451 

v.  Edmunds.  94  X.  Y.  309,  34 

v.  Mississippi,  etc..  Co.,  76  Wis. 

592»     ■  537 

Whiteside  v.  Adams,  26  Ind.  250,      281, 

7r,7,  769 
Whitesides  v.   Russell,  8  W.  &  S. 
44,  192,  718 

v.  Hunt,  97  Ind.  191.  614 

Whitlock  v.  Consumers  Gas,  etc., 

Co.,  127  Ind.  62,  700 

Whiteman  v.  Harriman,  85  Ind.  49,  562 

Whitman  v.  Weller,  39  Ind.  515,         1  59, 

410,  417,  696,  697 

Whitmore  v.  Supreme  Lodge,  etc., 

100  Mo.  36,  ^47 

Whitney  v.  Ferris,  10  Johns.  66,         732 
v.  Lehmer,  26  Ind.  503,  277 

Whiton   v.   Chicago,   etc.,    Co.,    25 

Wis.  424.  72 

Whitsitt  v.  Union,  etc.,  Co.,  122  U. 

s- 363.  447 

Whittem  v.  State,  36  Ind.  196,  231,  434 
Whittemore  v.  Fisher  (111.),  24   N. 

F.  Rep.  636,  412 

Whitworth  v.  Ballard,  56  Ind.  279,   506, 

7lS 

v.  Sour,  57  Ind.  107,  75S 

Wickham  v.  Hess,  3S  Ind.  1S3,  121, 

276.  448 
Wichita,  etc.,  Co.  v.  Fechheimer, 36 

Kan.  45,  624 

Wickliffe  v.  Owings,  17  How.  47,  476 
Widner  v.  State,  28  Ind.  394,  689 

Wieting  v.  Millston,  77  Wis.  523,       792 
Wigand  v.  Sichel,  3  Keyes,  120,        507 
Wiggins  v.  City  of  Chicago,  68  111. 
37-.  7iS 

v.  McCoy,  87  N.  C.  499.  65 

Wight  v.  Wallbaum,  39  111.  555.  9 

Wightman  v.  City  of  Providence,  1 

Cliff.  524,  623 

W  iggs  v.  Koontz,  43  Ind.  430,  261 

Wilcox  v.  Majors,  88  Ind.  203,  1S1 

\  .   Moud  v,  82    Ind.  2  [9,  670 

v.  Saunders,  4  Neb.  569,  61 

v.  Smith,  26  Barb.  310.  142 


re  to  Pages.\ 

Wilcox  v. Wilcox  (Vt.),2i  Atl.Rep. 

4-3-  444 

Wilds  v.  Bogan,  55  Ind.  331,  7S9 

Wiles  v.  Manlev,  51   Ind.  169,  761 

Wiley,  Kx  parte.  39  Ind.  546,  4 

v.  Barclay,  58  Ind.  577.  299 

v.  Coovert,  127   Ind.  559,  271,  556 

v.  Givens,  6  Gratt.  277.  555 

v.Johnson.  74   Ind.  2^.  773 

v.  Lovely,  46  Mich.  S3,  271 

v.  Neal,  24  Neb.  141.  37  N.  W. 

Rep.  920,  148 

Wilhite  v.  Wilhite.  124  Ind.  226,        504 

Wilhoit   v.   Cunningham,  87  Cal. 

453.  736 

Wilkerson  v.  Rust,  57  Ind.  1-72,  732,  751 

Wilkins  v.  Mitchell",  3  Salk.  229,        435 

v.  Slate.  113  Ind.  514,  7,9,   531 

Wilkinson  v.  Bay  ley,  71  Wis. 131,     071 

v.  St.  Louis,  etc.,  Co.,  102  Mo. 

130.  618 

v.  Whitney,  15  Ind.  194,  286 

Willcuts  v.  Northwestern,  etc.,  Co., 

8i  Ind.  300,  640 

Willett  v.  Porter,  42  Ind.  250,  6S2 

Willets  v.  Ridgway,  9  Ind.  367,  37 

Willey  v.Morrow,  1  Wash.  Ty. 474,  481 

v.  State,  46  Ind.  363,  679 

v.  State,  52  Ind.  421,  254,  617 

v.  Strickland,  8  Ind.  453,  403 

Williams  v.  Allen,  40  Ind.  295,  535,  616 

v.  Banhead,  19  Wall.  563,  596 

v.  Bank  of  U.    S.,   n    Wheat. 

414,  116,  139 

v.  Birch,  6  Bosw.  674,  521 

v.  Board,  121  Ind.  239,  605 

v.  Boyd,  75  Ind.  2S6,  39S,  399 

v.  Bruffy,  102  U.  S.  248,      332,  499 

v.  Citizens"  Rv.  Co.   (Ind.),  29 

N.  E.  Rep.  408,  *  592 

v.  Coleman,  49  Mo.  325,  306 

v.  Com.,  82  Kv.  640,  534 

v.  Conger,  131  U.S.  390,  467 

v.  Ewart,  29  W.  Va.  659,  5S1 

v.  Grand  Rapids,  53  Mich.  271,  53S, 

699 
v.  Guile,  117  N.  Y.  343,  643 

v.  Henderson,  90  Ind.  577,  178 

v.  Ilit/.ie,  83  Ind.  303,  146 

v.  Hutchinson(Fla.),7  So.  Rep. 
S52,  '     447 

v.  Jacksonville,   etc.,    Co.,   25 
Fla.  359,  455 

v.  Kessler.  S2  Ind.  1S4,  2S2 

v.Jones,  14  Ind.  363,  497 

v.  La  Penotiere,  25  Fla.  473,  447 
v.  Morgan,  in  V.  S.  6S4,  79,  115 
v.  Nesbit,  65  Ind.  171,  375 

v.  Norris,  12  Wheat.  117,  754 

v.  Nottawa,  104  U.  S.  209,  125 


TABLE  OF  CASES. 


CXX1X 


\Referenci  s  a 
Williams  v.  Pendleton,  etc.,  Co..  ;'■ 

Ind.  87,  7SS 

v.  Port,  <)  I  ml.  551,  497 

v.  Potter,  72  I  ml.  354,  162,  768 

v.  Quin,  7  Cow  .  5  1S4 

v.  Riley,  88  Ind.  290,    261,  274.  279 
v.  Rochester,  2  Lans.  1 69, 
\.  Santa  Clara  MiningAssocia- 

tion.  66  Cal.  193, 

v.  Shepherd,  1  Gr.  76, 

v.  Sims.  [6  S.  W.  Rep.  786, 

v.  State,  5  Ind.  235, 

V.  State,  87  1ml.  527, 

v.  State,  127  End.  471. 

v.  State,  69  Tex.  36S, 

v.  State,  28  Tex.  App.  301, 

v.  State,  61  Wis.  2S1, 

v.  Stevenson,  103  Ind.  243, 

v.  Thomas,  3  N.  M.  324, 

v.  Thomas,  7S  X.  C.  4". 

v.  Thomas,  etc.,  Co>  105  Ind. 

420 


190 


267 
340 
103 
736 
703 
59- 
57S 
250 
290 
628 
619 

7S1 
v.  West,  2  Ohio  St.  82,  54,  638 

v.  Wheeler,  17  How.  Pr.  93,         392 
v.  Willis,  7  Abb.  Pr.  90,  709 

Williamson  v.  Carlton,  51  Mo.  449,     2S 
v.  Field,  2  Barb.  Ch.  2S1, 
v.  Yingling,  So  Ind.  379, 


Willis  v.  Bayles,  105  Ind.  36^, 
v.  Browning, 96  Ind.  149, 
v.  Chambers,  S  Tex.  150 
v.  Farley,  24  Cal.  490, 
v.  McNutt,  75  Tex.  69, 
v.  Rivers,  So  Ga.  ^36, 
v.  State,  27  Neb.  98, 
v.  State,  73  Ala.  362, 

Willson  v.  Binford,  54  Ind.  569, 


53f'-  57o. 

624,  G26 

SS 

2S2,  404 

554 

«4 

307 

-5- 
250 

331 


v.  Binford,  74  Iml.  424,  220,  221 

v.  Glenn,  77  Ind.  5S5,  312 

v.  Watkins,  3  Pet.  43,  34 

Wilmot   v.    Richardson,   2  Keyes, 

5IO~  5S7 

Wilson,  In  re,  75  Cal.  5S0,  436 

v.  Allen,  3  How.  Pr.  R.  3(19,        146 
v.  Atlanta,   etc.,   Co.,    S2    Ga. 
3S6,  120,  678,  691 

v.  Board,  63  Mo.  137,  640 

v.  Broder,  24  Cal.  190,  469 

v.  Brookshire,  126  Ind.  497,  589,  781 
v.  Buell,  117   Ind.  315,  '73,  603 

v.  Campbell,  119  Ind.  2S6,  713 

v.  Castro,  31  Cal.  420,  604 

v.  Coles,  2  Blackf.  462,  632,  675 
v.  Daniel,  3  Dall.  400,  |., 

v.  Dean,  10  Ark. 308,  330 

v.  Everett,  571 

v.  Giddings,  2S  Ohio  St.  554,  ;<  1 
v.  Hamilton.  75  Ind.  71.  715.  716,  719 
v.  Harrison,  44  Ind.  468,  268 

I 


ye  In   Pi 

Wilson  v.  Hefflin,  81  Ind.  3;. 

v.  Hobdaj     1   M.  &  S.  121. 
v.  I  [olloway,  70  Ind.  407, 
v.  Holt,  85  Ala.  95, 
v.  I  loss,  24  U.  S.  Sup.  Ct.  Ry. 

(Lawyers'  ed.;   270, 
v.  1  lulz,  6l  Mo.  1  j;. 
v.  Kelly,  5S   Ind.  - 
v.  Life  and  Fire  Ins.   Co.,    12 

Pet.  140,  137, 

v.  McNamei  .  102  U.  S.  572, 
v.  McVey,  S3  Ind.  10S, 
v.  People,  94  111.  299,  57S, 

v.  Piper,  77  Ind.  437,  756, 

v.  Rocke,  5S  N.Y.  642, 
v.  Roots,  119  111.  379, 
v.  Scott,  3  Lans.  30S, 
v.  Shepherd,  15  Neb.  15, 
v.  State,  6  Blackf.  212, 
v.  State,  16  Ind.  392, 
v.  Stewart, 63  Ind.  294, 
v.  Town  of  Monticello, 85  Ind. 

10,  562,  565,  566,  60S, 

v.  Trafalgar,  etc.,  Co.,  93  Ind. 

2S7, 

v.  Vance,  qe;  Ind.  394, 
v.  Walfer,  8  Ind.  39S, 
v.  Wheeling,  19  W.  Ya.  323, 
v.  Ziegler,  44  Tex.  657, 
Wilstach  v.  Heyd,  122  Ind.  574, 
Wimberg  v.  Schwegeman,  47  Ind. 

52S> 
Wimer  v.  Albaugh,  7S  la.  79, 
Winbrenner  v.  Brunswick,  etc. .Co. 

(la.),  47  N.  W.  Rep.  1089. 
Winchell  v.  Hicks,  [8  N.  V.  558, 
Winchester  v.  Kim,r.  46  Mich.  102. 
Windham,  etc.,  Bank  v.  Kendall,  7 

R.  I.  77. 
\\  indman  v.  Vincennes,  5S  Ind.4So, 
Windsor  v.  McVeigh,  <r3  I".  S.  274, 
Winfield   Town    Co.   v.    Moris,    n 

Kan.  12S, 
Wing  v.  De  La  Rionda,  12 q   N.  V. 

678, 

v.  Warner.  2  Doug.  (Mich.) 288, 
Wingate  V.  Wilson.  53  Ind.  7S, 
Wingo  v.  State,  99  Ind.  343.         77. 
Winklev   v.  Fove,  ^^   N.  II.  171.   28 

N.I  I".  513.  56S, 

Winona,  etc.,  Co.   v.    Denman,    10 
Minn.  267, 

v.  First  Nat.  Bank,  ^3  HI.  App. 
630, 
Winsett  v.  State.  54  Ind.  437,     241. 

529, 
\\  inship  v.  Block,  96  Ind.  446, 
Winslow    v.    Anderson.   -5   Dev.    tV 
Bat.  (L.)  9, 

V.  Winslow,  52  Ind.  S. 


3r" 

43r' 

63 
393 

139 

3-7 
736 
766 
402 

{>3') 
601 

71 
603 


609 


574 
268 

745 

65 

149 

276 

;o, 
692 


550 
662 


791 
62 

1 48 


655 


612 

55< 

3*9 
243, 

:>»- 
45 

284 
59a 


CX  XX 


TABLE  OF  CASES. 


rences  are  to  Pages.] 


Winsor  v.  Queen,  6  B,  a:  S.  143.  541 
Winston  v.  Miller,  20  Miss.  550,  2S6 
Winterfield    v.  Bradnum,   3  C^B, 

Div.  324,  39S 

Winter  v.  Fulstone  (Nev.),  21  Pac. 

Rep.  687,  472 

v.  Hughes.  3  Utah.  43S,  343 

Winter-  v.  Ethell.  132  U.  S.  207,  97 

v.  Hughes,  3  Utah,  438,  315 

v.  Kansas  City.  etc..  99  Mo.  509,  391 

v.  Null,  7    S.  E.  Rep.  443,    "         34S 

Winterson  v.  Eighth  Ave.  R.  Co., 

2  Hilt.  3S9,  407 

Winton  v.  Conner,  24  Ind.  107,  494 

Wiscart  v.  D'Auchj,  3  Dall.  321.         15 

Wise  v.  Columbian  Turnpike  Co., 

7  Cranch.  276,  49 

v.  Ringer.  42  Ala.  4S8,  673- 

v.  Williams,  SS  Cal.  30,  479 

Wiseman  v.  Lynn,  39  Ind.  250.  306 

v.  Mitchell  Co..  104  X.  C.  330,   452 

v.  Risinger,  14  Ind.  461,  630 

v.  Wi-eman,  73  Ind.  112,  555 

Wisconsin,  etc.,  Co.  v.  Plumer,  49 

Wis.  668,  450 

Wishmier  v.  Behymer,  30  Ind.  102,  658 
v.  State,  1 10  Ind.  523,  159,  273 

Wiscart  v.  D'Auchy,  3  Dall.  321,  134 
Witbeck  v.  Chittenden,  50  Mich. 426,  83 
Withers  v.  Buckley,  20  How.  S4,  27 

Withers  v.  Jacks,  79  Cal.  297,  413 

v.  Patterson.  27  Tex.  491,  392 

Witing  v.  City   of  Kansas,  39  Mo. 

A  pp.  259,     "  67S 

Witkowski  v.  Hern,  S2  Cal.  604,  66 

Witt  v.  King,  56  Ind.  72,  628 

Witten  v.  Caspary,  15  S.W.  Rep.  47,  340 
Witter  v.  Arnett,  S  Ark.  57,  590 

v.  Latham,  12  Conn.  392,  701 

Witters  v.  Sowles,  38  Fed.  Rep.  700,  126 
Wittkowskv  v.Wasson.  71  X.  C.  451,  702 
Witz  v.  Dale  (Ind.),  27  X.  E.  Rep. 

498.  187,  1 88,  198 

Wixson  v.  Devine,  80  Cal.  385,  492 

Wolcot  v.  Wigton,  7  Ind.  44.  670 

Wolcott  v.  Standlcy.  62  Ind.  198,  597 
Wolever  v.  State.  127  Ind.  306,  671 

Wolf  v.  Schofield,  3S  Ind.  175,  562, 

605,  674 

v.  State.  11  Ind.  231,  420 

Wolfe  v.  Davis.  74  X.  C.  597,  1504 

v.  Kable,  107  Ind.  ^5,  7S1 

v.  Pugh,  1 01  Ind.  293,  572,  702 

Wolff  v.  Mathews  (Neb.),  11  S.W. 

Rep.  563,  7S 

Wolfley  v.  Lebanon   Mining  Co.,  3 

Col.  296,  177 

W    hold  v.  Oakley.   1   Sheldon  (X. 

Y.  .  261,  62S 

Wolly,  In  re,  11  Bush.  (Ky.)  95,  7 


Womack  v.  McAhren,  9  Ind.  6,         101, 

I03-  467 
Wood  v.  Brewer.  9  Ind.  86,  Si,  89 

\ .  Franklin,  97  Ind.  1 17, 
v.  Fulton,  2  llarr.  &  G.  71,  33S 

v.  Jackson.  S  Wend.  9,  494 

v.  Lake,  13  Wis.  84,  400 

v.  Ostram,  29  Ind.  177,   17.3^'.  572, 

624 
v.  Raw  lings,  76  111.  206,  127 

v.  Squires,  60  X.  V.  191,  190 

v.  State,  92  Ind.  269,  2^3 

\.  State,  27  Tex.  App.  538,  4^1 

v.  Thomas,  5  Blackf.  553,  312 

v.  Wall,  5  La.  Ann.  1  7 9,  323 

v.  Wayne,  etc.,  48  Mich.  641,       313 
v.  Wheeler,  106  X.  C.  512,  601 

v.  Wilkinson,  13  Ind.  352,  7; 

v.  Wood,  51  Ind.  141,  64,  229 

Woodard  v.  Davis,  127  Ind.  172,292.  581 
Woodburn  v.  Fleming,  1  Blackf.  4,  321, 

WTood   Paper  Co.  v.  Heft,  S  Wall. 

333.  125 

W  oodfield  v.  Barber,  iS  Ind.  320,  296 
Woodfill  v.  Patton,  76  Ind.  575,  709 
Woodhousev.  Fillabater.  77  Va.  317.  1  72 
Woodrum  v.  Kirkpatrick,  2  Swan. 

217,  459 

Woodruff  v.  Garner,  27  Ind.  4.  398 

v.  Jabine  (Ark.),  15  S.  W.  Rep. 

S30,  634 

v.  Rose,  43  Ala.  3S2,  71 

Woods  v.  Brezzinski,  57  Conn.  471,   102 

v.  Brown,  93  Ind.  164,  165,  2815 

v.  Dickinson.  7  Mat  key,  301  66 

v.  Hamilton,  39  Kan.  (19,  6^7 

v.  Winan,  122  N.  Y.  445,  643 

Woodward  v.  Baker,  116  Ind.  152,     198 

v.  Beegue,  53  Ind.  176,  571 

v.  Corson,  86  Pa.  St.  176,  463 

v.  Horst,  10  la.  120,  554,  7S4 

v.  Howard,  13  WTis.  557,  483 

v.  Leavenworth,  14  Ind.  311,       215 

v.  Murdock  (Ind.),  13  Crim.  L. 

Mag.  71,  24S 

Woodworth  v.  Wilcox,  27  Ind.  207,    524 

v.  Zimmerman,  92  Ind.  349,  488,  595 

Woody  v.  Dean,  24  S.  C.  499,  681 

Woollen  v.  Whitacre,  91  Ind.  502,     635, 

694,  696 
v.  Wire,  no  Ind.  251,  531,  535,  575, 

'696 

v.  Wishmier,  70  Ind.  10S,     771,  774 

Woolery  v.  Grayson,  no  Ind.  149,     52, 

671 

v.  Louisville,  etc.,  Co.,  107  Ind. 

3S1-  571.  703 

Woolfolk  v.  State.  81  Ga.  551,  618 

Woolley  v.  State,  S  Ind.  377,         64,  229 


TABLE  OF  CASES 


C  X  X  X  i 


Referena  s  art   to  1 ' 


Woollcy  v.  State,  8  Ind.  502,  253 

Wooster  v.  Glover,  37  Conn.  315,       1S0 

Worley  v.  Moore,  97  End,  1 ;,  570,  571,622 

Wortham  \.  Harrison,  8  Tex.  141,     4S3 

Worthington  v.  Olden,  31  la.  419,     666 

Wray  v.  Hill,  S5  Ind.  546,  719 

Wreidl  v.  State.  48  Ind.  579,  256 

Wright,  In  re,  19  Cal.  550,  1  \2 

Wright  v.  Abbott,  85  Ind.  [54,  373,  616 

v.Anderson.  117   Ind.  349,  73 

v.  Bovnton,  40  N.  H.  353,  780 

v.  Cabot,  S9  N.Y.  570/  733 

v.  Carpenter,  49  Cal.  607,  539 

v.  Defrees,  S  Ind.  29$,  5 

v.  Field,  7  Ind.  376,  596,  603 

v.  Forrestall,  65  Wis.  341,  514 

\    Gillespie,  43  Mo.  App.  244,    657 

v.  Hooker,  10  N.  Y.  51,  407 

v.  Jordan,  71  Ind.  I,  413 

v.  judge  of  Superior  Court,  41 

Mich.  7--''.  757 

v.Julian.  97  Ind.  109,  640 

v.  Kleyla,  104  Ind.  223,  10S 

v.  McHaffey,  76  la.  96,  122 

v.  McLarinan,  92  Ind.  103,  36S,  375 


99,  101, 

105,  221 

285 

391 

2S2 
71,  100 


v.  Manns,  11 1  Ind.  42. 

v.  Marsh,  2  Gr.  (la.)  94, 
v.  Mulvanev.  7^  Wis.  89, 
v.  N'orris,  40  Ind.  247. 
v.  Rogers,  26  Ind.  218, 
v,  Sanderson,  20  Mo.  App.  534,  414 
v    State.  7S  Ga.  102,  556 

v.  Wilson,  9S  Ind.  112.  494 

v.  Wright,  97  Ind.  444,  108 

v.  Wright,  74  Wis.  439,  SS 

Wyandotte,  City  of,  v.  Gibson,  25 

Kan.  236,  624 

Wyatt  v.  Noble.  S  Blackf.  507,  527 

Wynn  v.  Central,  etc.,  Co.,  14  N.Y. 

Supp.  172,  546,  655 

v.  Simons,  33  Ala.  272,  666 

v.  Troy,  109  Ind.  250.  74S 

Wynne  v.  Newman,  75  Ya.  811,         793 

Wysor  v.  Johnson,  30  N.    E.  Rep. 

'44-  759 

v.Johnson,  1  Ind.  App.  419,  51 

vVvvell  v.Jones,  37   Minn.  6S,  675 


Yancey  v.  Teter,  39  Ind.  305,  2S4 

Yaple  v.  Titus.  41  Pa.  St.  195,  140 

Yates  v.  Lansing,  9  Johns.  415,  474 
v.  Lansing,  5  Johns.  2^2,     424.  ''71 

Yater  v.  Mullen,  24  Ind.  277,  470 

v.   Mullen,  23  Ind.  562,  786 

v.  State.  58  Ind.  299,  604 

Y eager  v.  Wright,  112  Ind.  230,  398, 


Yerkes  v.  Sabin,  97  Ind.  1  \i.        :  „  712 
Yeakle  v.  Winter-.  60  Ind 
Yearley  v.  Sharp,  <,'>  I         ;    .    22 

Yeaton  v.  Lenox,  3  Pet.  123, 

Yeoman  v.  Davis,  86  Ind. 
York  v.  Ingham  Circuit  Judgi 

Mich.  421. 

v.  Pease,  2  Gray,  -  535 

York    Co.   v.  Central,  etc.,  Co..   3 

Wall.  107.  733 

"\  Ork,  etc.,  Co.  v.  Myers,  18    How. 

243. 

"S  ost  v.  Conroy,  92  Ind.  464, 
Young.  In  re,  22  Wis.  205,  450 

Young  v.  Dickey,  63  Ind.  31,     632,  671 
v.  Gundy,  6  Cranch.  51,  73 

v.  Harry,  4  Blaekt.  404 

v.  Highland,  9  Gratt.  16,  616 

v.  Hudson,  99  Mo.  102,         109 
v.  Ledrick,  14  Kan.  92.  532 

v.  McFadden,  125  Ind.  254.  108,  577 
v.  McLane,  S  Ind.  357.  750 

v.  Martin,  8  Wall.  354,  164,  7:9.  753 
v.  Mason,  S  111.  55,  323 

v.  Matthiesen,  etc.,  Co..  10;  111. 

26.  6S 

v.  Omohundro,  69  Md.  424,  639 

v.  Pickens.  4;  Miss.  553,  140 

v.  Sellers,  106  Ind.  xoi,  670 

v.  Stearns,  91  111.  22 2,  58 

v.  Youngman  (Kan.),  25   Pae. 

Rep.  209,  746 

Youngman  v.  Elmira,  etc..  65   Pa. 

St.  278,  286 

Yturbidev.  United  States.  22  How. 

290,  94 


Zable  v.  Harris,  S2  Ky.  473. 

Zackary  v.  Pace,  9  Ark.  212,  570 

Zeckendorf  v.  Zeckendorf,  1    Ariz. 

401,  91 

v.Johnson,  123  L.  S.017,  50 

Zehnor  v.  Beard,  b  Ind.  96,         195,  401, 

v.  Crull,  10  Ind.  547.  J46 

Zeigelmueller  \ .  Seamei-,63  Ind. 488,  404 
Zehner  v.  Kepler.  16  Ind.  290,  615,  616, 

658 


Zeller    v.    Crawfordsville,    90    Ind 

187 
v.  Griffiths,  89  Ind   80, 
Ziegler  v.  Handrick,  106  Pa.  St.  87, 

v.  Manges,  121  Ind.  99, 
Zimmerman  v.  Marchland,  23  Ind. 

474- 
Zink  v.  Dick.  1   Ind.  App.  269, 
Zoller  v.  McDonald.  23  Cal.   1  56, 
Zonker  v.  Cowan.  S4  Ind.  395, 


87,  ''V 
793 

7i3 

78a 

5S1 


Part  I. 

APPELLATE   TRIBUNALS,  JURISDICTION   AND   PRACTICE 


CHAPTER   I. 


APPELLATE    TRIIU'NALS. 


§  i.  Judicial  Power — Definition. 

2.  Rule    where    Constitution    defines 

the  jurisdiction. 

3.  Only    judicial   duties    can    be    im- 

posed on  courts. 

4.  Courts  not  required  to  give  opin- 

ions to  the  legislature. 

5.  Where    the    ultimate    superior  ju- 

risdiction is  vested. 


§6.  Inherent  powers  of  constitutional 
courts. 

7.  Power  to  frame  rules. 

S.  Where  judicial  power  resides. 

9.  Amplifying  jurisdiction. 

10.  Influence  of  the  Common  Law. 

11.  Supplying  statutory  omissions. 


§  1.  Judicial  Power — Definition — Judicial  power  is  inherent  in 
the  people,  and  is  vested  in  courts  by  the  constitution.  The 
legislature  determines,  subject  to  the  provisions  of  the  constitu- 
tion, what  tribunals  shall  exercise  judicial  power,  but  the  power 
itself  is  neither  created  nor  vested  by  legislative  enactments. 
The  constitution  authorizes  the  creation  of  tribunals,  and  when 
they  are  created  by  the  legislature  pursuant  to  the  authority 
conferred  by  the  organic  law,  they  are  endowed  by  that  law, 
and  not  by  legislative  enactments,  with  judicial  functions.1  It 
is  one  thing  to  organize  tribunals  and  quite  another  to  invest 
them  with  that  branch  of  the  governmental  power  known  as  the 
judicial. 


1  The  State  v.  Noble,  11S  Ind.  350; 
Shugart  v.  Miles,  125  Ind.  445,  447; 
Hawkins  v.  The  State,  125  Ind.  570; 
People  v.  Maynard,  14  111.  419;  Hall  v. 
Marks,  34  111.  35S;  Kilbourne  v.  Thomp- 
son, 103  U.  S.  16S;  People  v.  Keeler, 
99  N.  Y.  463,  S.  C.  52  Am.  Rep. 
49.  This  doctrine  necessarily  results 
from  the  fundamental  principle  thai  the 
legislature  has  only  legislative  power, 
and  having  only  such  power  it  can  have 
no  judicial  power  to  delegate.     1  Bryce 

'    (3 


Am.   Com.  429;    Warner   v.  People,  z 
Denio.  272;    King   v.  Hunter,  65   N.  C. 
603,  S.  C.  6  Am.  Rep.  754.     In  speak- 
ing of  a  constitutional  provision   con- 
ferring authority  upon  designated  judi- 
cial   tribunals    the    Supreme    Court    of 
Illinois  said:     "This  section  exhau: 
the   judicial  power  of  the  people  of 
Stale.     It   is  there   fully    disposed 
leaving  no  residuum."     Missouri  River 
Telegraph    Co.  v.  The   First  National 
Bank,  74  111.  217. 


4  APPELLATE    PROCEDURE. 

Rule  where  the  Constitution  deliues  the  Jurisdiction — 
Where  the  constitution  defines  the  jurisdiction  of  a  court  the 
legislature  can  not  take  it  away,  nor,  indeed,  change  it  in  any 
materia]  respect.1  As  a  corollary  of  this  principle  it  must  fol- 
low that  where  a  Supreme  Court  is  created  by  the  constitution 
with  ultimate  appellate  jurisdiction,  the  legislature,  although  it 
may  have  power  to  establish  courts,  can  not  take  away  the  su- 
perior appellate  jurisdiction.2  The  Constitution  of  Indiana  cre- 
ates  a  Supreme  Court  and  makes  it  the  highest  judicial  tribu- 
nal of  the  State,  so  that  while  inferior  tribunals  maybe  created, 
a  higher  one  can  not  be  established  by  the  legislature.3  While 
the  legislature  can  not  rightfully,  or  constitutionally,  take  away 
tin'  supreme  appellate  jurisdiction  of  the  Supreme  Court,  it  mav 
regulate  the  procedure,  designate  the  amount  that  shall  author- 
ize an  appeal,  and,  within  limits,  designate  the  class  of  cases 
that  mav  be  appealed  ;  but  it  can  not,  under  the  guise  of  regu- 
lating the  procedure  or  the  right  of  appeal,  take  away  the  es- 
sential jurisdiction  of  that  court  as  the  highest  court  of  error  or 
appeals. 

3.   Only  Judicial   Duties   can  be  Imposed — The   fundamental 

•  '  Harris   v.  Vanderveer,  -i  N.  J.  Eq.  to  the   amendments  adopted  in    1SS1, 

424,    /;/   re  Cleaveland    N.J.  .  17  Atl.  it   was    held    that   courts    inferior    to 

772;    Hutkoff  v.   Demorest,   103  N.  V.  the  circuit  courts  might  be  established. 

377;   Slate   v.  Gannaway,  16  Lea.  124;  Combs  v.  The  State,  26  Ind.  9S;   An- 

Landers  v.  Staten  Island  Railroad  Co.,  derson  v.   State,  2S  Ind.  22;    Clem  v. 

■     Y.   (.50;    In    Matter  of  the    Ap-  State,   33    Ind.  41S;    Eitel  V.  State,  33 

plication  of  the   Senate,    10    Minn.  78.  Ind.  201;  Ex  fartc  Wiley,  39  Ind.  546. 

*  rts   must  exercise    the  jurisdiction  Since    the   adoption   of  those  amend- 

1    in    them    by    the   constitution,  ments  there  can   be  no  question  as  to 

ander    v.    Bennet,  60   X.    Y.   204.  the  power  of  the   legislature   to  estab- 

Where  the  constitution  lodges  jurisdic-  lish  courts  superior  in  jurisdiction  to 

tion  there   it  abides   beyond   legislative  the  circuit  courts.    Courts  created  sole- 

ek  Water  Company  ly  by  the  legislature  are  subject  to  leg- 

Vallejo,  p  Cal.  70.  islative  control,  except  that  while  they 

•  In  the  Matter  of  the  Senate,  9  Col.  exist  as  courts  they  possess  the  inher- 

Vdams  v.  Town.  3  Cal.  2.17:  1  licks  ent  powers  of  courts.      Mullen  v.  State, 

•  Bell,  3  Cal.  219,   22\;    Fitzgerald    v.  34  Ind.  540.     The  inherent  power  of  a 

n,    (   Cal.  235;    Haighl    -.  Gay,  8  court  can  not  be  destroyed  since   that 

Cal.  297;   Adams  -  .  Wood-.  8  Cal.  306,  would  destroy  the  independence  of  the 

Willis  "  .  Farley,  24  Cal.. po.  499.  judiciary.     Little  V.  State,  90  Ind.  338; 

Article   7.  $§   1   to  7.     Prior  Ilawkin  v.  State,  25  N.  E.  SiS. 


APPELLATE   TRIBUNALS.  5 

principle  of  free  government  requiring  the  separation  of  the  de- 
partments of  government '  precludes  the  legislature  from  impos- 
ing any  other  than  judicial  duties  upon  the  courts.2  The  courts 
can  not  be  required  to  interfere  with  legislative  matters,  nor  can 
they  be  given  jurisdiction  over  matters  made  legislative  by  the 
constitution.3 

§  4.   Court  Dot  Required  to  give  Opinions  to  Legislature— The 

Supreme  Court  can  not  be  required  to  give  opinions  to  the  leg- 
islature except  in  those  States  where  the  constitution  expressly 
imposes  the  duty  upon  that  tribunal.  The  duty  does  not  rest 
upon  the  courts  except  where  there  is  a  constitutional  provision 
imposing  it  upon  them.  As  there  is  no  such. requirement  in  the 
Constitution  of  Indiana,  that  duty  can  not  be  imposed  upon  the 
Supreme  Court  of  this  State.4 

§  5.    Where  the  ultimate  Superior  Jurisdiction  is  Vested — It  is  no 

doubt  true  that  under  the  constitutional  amendments  of  1881,5 
the  legislature  may  create  intermediate  appellate  courts,  but  as 
it  can  not  take  from  the. Supreme  Court  the  ultimate  appellate 

1  Sinking  Fund  Cases,  99  U.  S.  700;  439;    Opinion  of  Justices.  23  Fla.  297, 

Clough  u.Curtis,  10  Sup.  Ct.  R.  573;  S.  C.  6  So.  R.  925;  Opinion  of  Justices, 

Wright  v.  Defrees,  S  Ind.  298;   Lafay-  49  Mo.  216;  In  re  Irrigation  Resolution, 

ette,  etc.,  Co.  v.  Geiger,  34  Ind.  185,  197;  9  Col.  620;  /;/  re  Senate  Resolution.  2  1 

Kuntz  v.  Sumption,  117  Ind.  1;   Smvthe  Pac.  R   470;  Opinion  of  Judges,  79  Kv. 

v.  Boswell,  117  Ind.  365;   Smith  v.  My-  621. 
ers,  109  Ind.  1.  5  Const.,    Article    2,     §    14;     Article 

*Exj>arte  Griffiths,  1 18  Ind.  83;  Hay-  7,  §  1.     The   general   authority    to   es- 

burn's  Case, 2. Dall. 409,7/;  United  States  tablish  courts  leaves  much  to  the  leg- 

v. Ferreira,  13  How. 40, «;  Rees  v.  City,  islative  discretion.     Commonwealth  v. 

19    Wall.    107;     Auditor    v.    Atchison,  Hippie,    69    Pa.    St.   9;     State  v.   New 

etc.,  Co.,  6  Kan.  500;   Smith  v.  Strother,  Brunswick,    42    N.    J.    51;     State 

6S  Cal.  194;   Burgoyne   :•.  Supervisors,  Brown,  71   Mo.  454;    Burke  v.  St.  Paul, 

5  Cal.  9;   People  v.  Nevada,  6  Cal.  143;  etc.,  Co.,  35  Minn.  172.      But  the  juris- 

McLean   Co.  v.  Deposit  Bank.  Si    Ky.  diction  vested  by  the  constitution  can 

-51-  not  he  changed  or  impaired  by  legisla- 

3  Clough   v.  Curtis,  10  Sup.  Ct.    R.  tion.     Greenough  v.  Greenough,  1 1  Pa. 

573;   Smith  v.  Myers,  109  Ind.  1;   Rob-  St.  489;  Gough  v.  Horsey.  27  Wis.  id; 

ertson  v.  State,  109  Ind.  79;    State  v.  Risser  v.  Hoyt,  53  Mich.  185;   Schoultz 

Harmon.   31    Ohio    St.   250;    State   v.  v.  McPheeters, 79  Ind. 373;  In  reCleve- 

Baxter,  28  Ark.  129.  land,  17  Atl.  R.  772  (X.  J.). 

*  Opinion    of  Justices,  21    N.  E.    R. 


i;  APPELLATE   PROCEDURE. 

jurisdiction  it  would  seem  to  follow  that  no  statute  can  be  valid 
which  assumes  to  vest  in  any  other  tribunal  than  the  Supreme 
rt  jurisdiction  of  questions  which  require  the  highest  expres- 
of  judicial  judgment.  Whether  the  legislature  can  give 
any  other  tribunal  than  the  Supreme  Court  jurisdiction  over  all 
is  involving  simply  a  controversy  as  to  the  right  to  money  is 
doubtful,  for  it  seems  that  even  where  money  alone  is  in  dispute 
there  must  be  some  limit  to  the  jurisdiction  of  an  intermediate 
tribunal,  otherwise  it  would  not  be  inferior.  But,  however  this 
may  be,  it  is  clear  that  as  to  all  controversies  which  are  in  their 
nature  inferior,  as  probate  matters,  controversies  concerning 
comparatively  small  sums  of  money,  misdemeanors,  and  the 
like,  appellate  jurisdiction  may  be  given  to  an  intermediate  ap- 
pellate tribunal.1  For  many  years  this  principle  has  been  rec- 
ognized, for  during  the  existence  of  the  common  pleas  court 
there  were  some  cases  where  the  court  to  which  appeals  were 
allowed  was  the  circuit  court,  and  that  court  is  now,  and  long 
has  been,  the  court  of  last  resort  in  some  cases  originating  be- 
fore justices  of  the  peace. 

§  6.  Inherent  Powers  of  Constitutional  Courts — All  constitutional 
courts  are  invested  with  inherent  powers  by  the  constitution. 
This  must  necessarily  be  true,  otherwise  there  could  be  no  inde- 
pendent judiciary.  The  legislature  can  not  take  from  a  court 
the  power  to  decide  upon  the  validity  of  statutes,  since  to  con- 
cede this  power  to  the  legislature  would  make  the  legislature 
the  judge  of  its  powers  and  thus  break  down  the  partition 
between  the  legislative  and  the  judicial  departments  of  the 
•rnment,  nor  can  the  legislature  deprive  the  courts  of  power 
over  their  own  records  ;  this  power  is,  it  is  clear,  absolutely 
essential  to  the  independence  of  the  judiciary.  The  principle 
involved  in  the  instances  we  have  given  justifies  the  conclusion. 
that  the  legislature  can  not  deprive  the  courts  of  the  power  to 
prevent  fraud  upon  their    jurisdiction  or   process.2     Upon  the 

-.  Murphy,  55  Mo.  372;  Smith     v.  State,  85  Ind.  318;    Smythe  v.  Bos- 
Mo.    584;    Harper    v.     well,  117  Ind.  365;  Boswell  v.  Boswell, 
117  Ind.  599.    Upon  the  general  doctrine 

2  Nealis        Di(      .7:   Ind.  374;    Cav-     of    the    existence  in    all  constitutional 
h  V.  Smith,  84  Ind.  380;    Sanders     courts  of    inherent   judicial    power,  the 


APPELLATE   TRIBUNALS.  7 

same  principle  it  must  be  held  that  every  constitutional  court 
has  inherent  power  to  preserve  its  dignity  and  independence  by 
punishing  persons  guilty  of  contempt.1  It  is  true,  no  doubt, 
that  the  legislature  ma)-  regulate  the  procedure,  but  it  can  not 
in  an}r  manner  destroy  or  impair  the  substantive  power,  for  that 
is  above  legislative  reach.  The  fundamental  principle  to 
which  we  have  referred  requires  that  it  should  be  held  that  the 
conduct  of  business,  the  course  of  argument  and  the  like,  are 
matters  for  the  determination  of  the  courts  and  not  for  legisla- 
tive decision.2  The  legislature  may,  of  course,  prescribe  rules 
of  pleading  and  practice  and  require  the  courts  to  conform  to 
those  rules,  but  it  can  not  so  far  control  the  conduct  of  business 
as  to  invade  the  domain  of  the  judiciary.3  It  is  very  question- 
able whether  the  legislature  can  direct  how  briefs  shall  be  pre- 
pared or  arguments  conducted,  since  the  attempt  to  exercise 
such  power  would  seem  to  be  an  unauthorized  encroachment 
upon  the  province  of  the  courts. 

§  7.    Power  to  Frame  Rules — It  is  an  ancient  principle  that 


following  cases  will  be  found  interest- 
ing and  instructive:  United  States  v. 
Hudson,  7  Cranch.  34;  Houston  v. 
Williams,  13  Cal.  24;  Underwood  v. 
McDuffie,  15  Mich.  361;  Chandler  v. 
Nash,  5  Mich.  409;  Greenough  v.  Green- 
ough,  1 1  Pa.  St.  489.  See,  also,  Schoultz 
v.  McPheeters,  79  Ind.  373;  Gregory  v. 
State,  94  Ind.  384;  Kuntz  v.  Sumption, 
117  Ind.  1;   Wilkins  v.   State,  113   Ind. 

5*4- 

1  Ex  parte  Robinson,  19  Wall.  505; 
Ex  parte  Terry,  12S  U.  S.  2S9;  Ander- 
son r.  Dunn.  6  Wheat.  204;  Little  v. 
State,  90  Ind.  33S;  Holman  v.  State,  105 
[nd.513;  Hawkins  v. State,  125  Ind.  570; 
State  v.  Morrill.  16  Ark.  384;  People:*. 
Wilson,  64  111.  195;  Clark  v.  People, 
Breese  (111.),  340;  Ex  parte  Biggs,  64 
N.  C.  202;  Com.  v.  Dandrige,  2  Ya. 
Case,  40S;  State  v.  Matthews,  37  X. 
H.  450;  /;/  ;-,  Wollv.  11  Bush.  (Kv.) 
IS,     in;      Arnold     v.    Commonwealth, 


80  Ky.  300,  S.  C.  44  Am.  R.  4S0. 
Courts  have  the  inherent  power  to 
protect  themselves  and  their  officers. 
In  re  Neagle,  14  Sawyer  U.  S.  C.  C. 
232,  S.  C.  5  Lawyers'  Rep.  Ann.  R.  78. 
The  courts  may  protect  themselves  from 
annoyance  by  travel  on  the  highways. 
Belvin  v.  Richmond,  85  Va.  574. 

2  A  very  able  and  instructive  paper 
upon  this  general  subject  was  read  be- 
fore the  American  Bar  Association, 
at  a  meeting  held  in  August,  1S89,  by 
Judge  Henry  B.  Brown.  Reports  ol 
American  liar  Association,  Vol.  12.  p. 
263.  The  author  demonstrates  the  fact 
that  many  statutes  do  trench  upon  the 
judicial  domain. 

3  Smvthc  v.  Boswell,  117  Ind.  365. 
The  legislature  may  regulate  procedure 
but  it  can  not  destroy  the  power  of  con- 
stitutional courts.  Supervisors  v. 
Amight,  54  Mass.  672. 


APPELLATE  PROCEDURE. 


courts  may  prescribe  rules  for  the  conduct  of  business  and  this 
power  is  an  inherent  one.  so  far,  at  least,  as  concerns  the  mode 
of  conducting  the  affairs  of  the  court,1  although,  as  has  been 
said,  the  power  to  prescribe  general  rules  of  procedure  and 
pleading  binding  upon  the  parties  and  the  court,  is  a  legislative 
:  but  this  legislative  power  is  not  broad  enough  to  warrant 
the  conclusion  that  the  legislature  can  control  the  action  of  the 
court  in  matters  of  a  purely  judicial  nature.  It  is  not,  and  can 
not  be,  within  the  legislative  power  to  so  fetter  or  control  the 
action  of  the  courts  in  the  conduct  of  business  as  to  preclude 
the  exercise  of  judicial  discretion  or  judgment.  Such  matters 
must  be  left  to  the  courts,  otherwise  judicial  independence  will 
be  annihilated  and  judges  become  mere  passive  instruments  of 
legislative  will.  It  is  difficult  to  define  with  exactness  the  line 
which  separates  the  legislative  from  the  judicial  power  respect- 
ing the  general  subject  under  consideration,  but  it  is  quite  safe 
to  affirm  that  a  constitutional  court  has  power  to  prescribe  rules 
for  its  own  direct  government  independent  of  express  legisla- 
tive enactments.2     In  so  far  as  regards  the  personal  conduct  of 

1  Attorney    General   v.  Lun.   2   Wis.  C.  105;  Barnes  v.  Easton,  98  N.  C.  116. 

/;/  re  Road   McCandless  Tp.,  no  were  cited.     It  follows,  as  a  legitimate 

5t.6o5,  1  Atl.  R.594.     Rules  framed  deduction  from  the  proposition  that  the 

by  a  court  in  the  exercise  of  the  power  rules  of  court  have  the  effect  of  law,  that 

i  in  it  as   the   repository   of  that  it  is  not  only  the  right,  but  the  duty  of 

element    of  governmental    sovereignty  the  court,  to  enforce   its   rules  as  they 


known  as  the  judicial,  have  the  force 
and  effect  of  rules  of  law.  Rout  v. 
Ninde.  in  Ind.  597.  and  authorities 
cited;  Moulder  v.  Kempff,  115  Ind.  1.59. 
As  the  rules  of  court  have  the  force  and 
'    of  law,  parties  and  counsel  must 


are  written.  Parties  have  a  right  to 
expect  the  court  to  enforce  its  rules,  and 
there  is  no  reason  for  departing  from 
them  in  cases  where  they  justly  apply. 
It  may  happen,  as  it  does  in  all  cases 
where  general  rules  prevail,  that  pecul- 


them.     In  speaking  of  this  duty  it  iar  circumstances  may  justly  takeapar- 
said    by    the    Supreme    Court   of  ticular  case  outside  of  the  rules.    Ofthis 
rolina  in  the  case  of  Walker  the  court  must  judge,  but  the  operation 
I.  C.  487,  490,  that,  "The  of  its   rules  can  not  be   rightfully  sus- 
impri                                      vail,   to  some  pended  without  cause  properly  shown. 
it,  thai   the   rules  of  practice  pre-  2  The  statute  in  defining  the  powers 
1  by   tlii-  court  are   merely  direc-  and  jurisdiction  of  the  Supreme  Court 
iy  be  ignored,  disre-  grants   power  to    frame  rules,  but  it  is 
1    and    suspended    almost,   as   of  quite  clear  upon   principle  as  well  as 
nistake.     The  court  upon   authority,  that  it  needed  no  ex- 
ample   authority   to    make    them."  press    legislative    grant    to    invest    the 
!  K    n»  her  -  .  Anderson, 0.3  X.  court  with  that  power. 


APPELLATE   TRIBUNALS. 


judges  of  constitutional  courts  in  the  exercise  of  the  duties  of 
the  judicial  office  it  is  the  law  that  legislative  power  is  ineffec- 
tive to  control  them,  for  it  is  evident  that  without  freedom  of 
judicial  action  government  must  degenerate  into  a  system  of 
sovereign  and  supreme  legislative  power,  and  this  can  not  be 
allowed  to  take  place  under  a  republican  form  of  government.1 

§  8.  Where  Judicial  Power  Resides — Judicial  power  can  only 
reside  in  courts,  although  powers  in  their  nature  judicial  may 
be  conferred  upon  ministerial  officers.2  The  power  to  decide 
controversies  between  litigants  is  strictly  judicial,3  but  judicial 
power  is  not  confined  to  the  sole  act  of  deciding  or  of  giving 
judgment,  for  judicial  power  extends  beyond  the  simple  act  of 
deciding  or  adjudging,  and  embraces  many  incidents  connected 
with  the  administration  of  justice.4  Constitutions,  as  has  often 
been  decided,  are  framed  by  organized  communities  and  with 
reference  to    existing  things,5  so  that  when   a  term   having   a 


1  Nudd  v.  Burrows,  91  U.  S.  426,  S. 
C.  23  U.  S.  (Law.  Co.  Ed.)  2S6;  Indian- 
apolis, etc.,  Co.  v.  Horst,  93  U.  S.  291; 
Houston  v.  Williams,  13  Cal.  24; 
Vaughn  v.  Harp,  49  Ark.  160;  In  re 
Janitor,  $$  Wis.  410;  Commissioners  v. 
Hall,  7  Watts  (Pa.),  290;  1  Bryce's  Am. 
Com.  31;  Lieber's  Civil  Liberty,  154; 
Wilson's  Congressional  Government, 
2,  36;  3  Burke's  Works  (Bohn's  ed.), 
no;    Montesque's  Spirit  of  Laws,  t,^. 

2  Flournoy  v.  Jeffersonville,  17  Ind. 
169,  S.  C.  79  Am.  Dec.  46S;  Wilkins 
v.  State,  113  Ind.  514,519;  Pennington  v. 
Streight,  54  Ind.  376;  State  v.  Johnson, 
105  Ind.  463,  467;  Weaver  v.  Templin, 
113  Ind.  298;  Betts  v.  Dimon,  3  Conn. 
107;  Crane  v.  Camp,  12  Conn.  463; 
Eastman  v.  State,  109  Ind.  27S;  Orr  v. 
Meek,  111  Ind.  40;  State  v.  Green, 
112  Ind.  462. 

3  Rhode  Island  v.  Massachusetts,  12 
Peters,  657,  71S;  In  re  Cooper,  22  N. 
Y.67,  82,  84;  Sinking  Fund  Cases,  99 
U.  S.  700,  761;  Maby  v.  Baxter,  n 
lhisk.  6S2,  699;  Tindal  v.  Drake,  60 
Ala.    177;      In    re    Saline     County,    45 


Mo.  52.  Judicial  power  proper  can 
not  be  conferred  upon  any  other  of- 
ficers except  those  invested  Avith  power 
under  the  direct  or  indirect  pro- 
vision of  the  constitution  which  vests 
the  judicial  power  of  the  State.  Shoultz 
v.  McPheeters,  79  Ind.  373;  Greenough 
v.  Greenough,  n  Pa.  St^Sg;  Gregory  v. 
State,  94  Ind.  384;  Chandler  v.  Nash,  5 
Mich.  409;  Columbus,  etc.,  Co.  v. 
Board,  65  Ind.  427;  Hawkins  v.  Gov- 
ernor, 1  Ark.  570;  Speight  v.  People, 
87  111.  595;  Ex  parte  Randolph,  2 
Brock,  447;  Campbell  v.  Board.  11S 
Ind.  119,222;  Vandercook  v.  Williams, 
106  Ind.  345,  and  cases  cited;  Wight 
v.  Wallbaum,  39  111.  555. 

*  In  the  matter  of  Cooper,  22  N.  Y. 
67;  Striker  v.  Kelly,  2  Denio,  323; 
State  v.  Noble,  11S  Ind.  350,  360. 

5  Johnston  v.  State,  12S  Ind.  16,  iS; 
Durham  v.  State,  117  Ind.  477;  State 
v.  Denny,  118  Ind*.  3S2;  State  v.  Denny, 
11S  Ind.  449;  Davis  v.  State,  119  Ind. 
555'  556;  Cooley's  Const.  Lim.  (5th 
ed.),  73. 


10  APPELLATE   PROCEDURE. 

known  meaning  is  used,  the  inference  is  that  it  was  used  to  sig- 
nify what  is  embraced  within  the  term.  Thus,  where  the  term 
'•  judicial  power  "  is  employed  it  is  deemed  to  embrace  all 
things,  which,  by  the  consideration  of  courts  and  jurists,  have 
been  embraced  within  the  general  powers  and  duties  of  courts. 
It  is  not  to  be  expected  that  a  constitution,  or  even  a  statute, 
will  define  the  terms  employed,  or  state  in  detail  what  things 
are  within  the  sweep  of  such  terms.  In  the  work  of  construc- 
tion reference  must,  therefore,  be  made  to  the  existing  condition 
of  things  as  well  as  to  the  history  of  the  past.  Unsatisfactory 
and  clumsy  work  would  indeed  be  done  by  one  who  did  not 
look  beneath  words  to  things. 

§  9.  Amplifying  Jurisdiction — It  is  an  ancient  doctrine  of  the 
common  lawr  that,  "  It  is  the  duty  of  a  judge,  when  requisite, 
to  amplify  the  limits  of  his  jurisdiction."1  This  long  existing 
doctrine  is  not  without  force  even  under  systems  such  as  ours, 
where  jurisdiction  is  limited  and  regulated  by  written  laws, 
although  it  can  not,  of  course,  be  given  effect  in  contravention 
of  effective  statutory  provisions.  While  its  effect  is  circum- 
scribed by  written  laws,  it  is,  nevertheless,  not  without  force. 
Courts  often  tacitly  act  upon  it,  and  so  they  must  do  in  many 
cases  or  else  fail  in  doing  what  they  are  organized  for  the  pur- 
pose of  doing,  that  is,  of  administering  complete  justice.  In 
construing  remedial  statutes  this  principle  is  often  impliedly 
invoked,  and  sometimes  seemingly  acted  upon  without  a  con- 
sciousness of  its  existence.  As  the  principle  is  part  of  the 
common  law,  and,  consequent^,  part  of  the  very  foundation  of 
our  whole  system  of  jurisprudence,  it  is  logical  and  just  to 
assume  that  statutes  are  enacted  with  reference  to  it,  and, 
indeed,  to  assume  that  constitutions  are  framed  with  reference 
to  it. 

>  10.  Influence  of  the  Common  Law — As  the  common  law  is 
tlif  foundation  of  our  jurisprudence  it  can  not  be  disregarded 
in  considering  the  formation  of  our  courts,  nor  in  determining 

'Squire    v.    Ford,   9    Hare,   47.    57;  8   H.  L.  Cases,  338;    Dart  v.  Dart,  32 

Moses    v.     Macferlane,    2    Burr,    1005,  L.J.   P.   M.   &    A.    125;     Ashmole    v. 

""-■  ■  .Short.  1    H.  &    N.  210,  Wainwright,  2  Q.  B.  837,  S.  C.  2  G.  & 

214;    Litl    -     Martindale,  18  C     B.  314;  D.  217;  6  Jur.  729. 
v.  British  Empire  Ship 


APPELLATE   TRIBUNALS. 


11 


questions  of  procedure.  The  progress  of  one  who  should 
attempt  to  measure  the  powers  of  a  court,  ascertain  its  jurisdic- 
tion, or  apply  rules  of  procedure  without  reference  to  the 
common  law  would  be  very  unsatisfactory.  The  influence  of 
the  common  law  is,  and  must  ever  be,  very  great,  both  as  to 
the  nature  of  a  court,  its  essential  powers,  and  its  mode  of 
procedure.  The  principles  of  the  common  law  are  so  closely 
interwoven  with  all  matters  of  a  judicial  nature  that  an  acquaint- 
ance with  them  is  indispensable. 

§  11.  Supplying  Statutory  Omissions — Omissions  in  statutory 
provisions  are  often  supplied  by  the  common  law,  and  from 
that  source  fundamental  principles  are  frequently  obtained. 
Short-sighted  men,  deceived  by  the  statement  that  all  our 
courts  are  created  by  written  laws,  sometimes  act  upon  the 
false  theory  that  a  rule  or  principle  not  found  in  the  constitu- 
tion or  in  the  statute-book  has  no  existence.  It  is,  in  truth, 
impossible  to  justly  conceive  the  powers  and  duties  of  courts 
without  reference  to  the  fundamental  principles  of  the  unwritten 
law,  for  that  all-pervading  power  encircles  all  written  laws 
much  as  the  air  does  the  earth.  Statutes  are  not  often  intelli- 
gible without  reference  to  the  unwritten  law,  and,  upon  the 
principle  heretofore  stated,  constitutions  must  be  construed  with 
reference  to  the  fundamental  principles  recognized  as  existing 
by  their  framers.  There  is,  in  fact,  one  great  system  of  law  in 
which  written  enactments  and  unwritten  principles  have  their 
places  and  in  which  they  unite  to  form  one  harmonious  bodv  of 
law.1 

1  We  do  not,  of  course,  mean  to  be  un-  that    the    common    law    remedies    and 

derstood  as  affirming  that  a  casus  omis-  rules   of  procedure    should    remain    in 

stis  in  a  statute  can  be  supplied  by  the  force.     Fitch  v.  Creighton,  24  How.  V. 

courts.     The  rule  is,  we  know,  well  set-  S.  159;  Broderick's  Will,  21  Wall.   ^03, 

lied  that  the  courts  can  not  supply  such  519;  Clark  v.  Smith,  13  Pet.  19^.     See, 

an   omission.     In    re  Election   of  Ex-  also,  Holland  v.  Challen,  no  U.  S.  15; 

ecutive    Officers    (Neb.),   10  Law  Rep.  Borland  v.  Haven,  37  Fed.  R.  ^94;  Van 

Ann.    S03.       What    we    mean    is    this:  Sickle  v.  Belknap    (Ind.),  28    N.   E-   R- 

Where  the   legislature    has    not   under-  305.     Our  own  court  has  enforced   this 

taken  to  make  provision  for  all  cases  for  doctrine  with  reference  to  a  motion  for 

which  the  common  law  prescribed  rem-  a  venire  de  novo  as  well  as  in  reference 

edies,  the  courts  will  act  upon  the  pre-  to  other  matters  of  procedure.    Shaw  p. 

sumption,  where  there  is  nothing  coun-  Merchant's  National  Bank,  60   Ind.   s;. 
tervailine  it.  that  the  legislature  meant 


CIIAPTKR    II. 


APPELLATE   JURISDICTION. 


■)  12.    Jurisdiction  —  Definition. 

i  •.  Consenl  can  nol  confer  jurisdic- 
tion of  the  sub 

i  ).    Fid  it  i<  ius  cases. 

i ;.    Appeal  defined. 

[6.    Appellate  jurisdiction  defined. 

17.  Appellate  jurisdiction  one  of  re- 
view. 

[8.  Jurisdiction  for  one  purpose  re- 
1  for  all. 


$19.    Statutory    mode    of   review    ex- 
clusive. 

20.  Incidents  of  appellate  jurisdiction. 

21.  Power    of   appellate    tribunals    to 

frame  judgments. 

22.  Grant  of  appellate  jurisdiction. 

23.  Determination  of  the  question  of 

the  right  ot"  appeal. 

24.  Blending   of  legal   and    equitable 

jurisdiction. 


§  12.  Jurisdiction — Definition — Jurisdiction  is  the  authority  to 
hear  and  determine  a  legal  controversy.  Any  movement  of  a 
court  in  a  matter  in  which  it  has  authority  to  act  is  jurisdiction.1 
It'  it  appears  upon  the  face  of  the  record  that  there  is  authority 
to  move  in  the  case,  then,  as  a  general  rule,  there  is  jurisdiction 
to  hear  and  determine  the  controversy,2  and  in  order  that  this 
may  appear  it  is  only  necessary  that  the  record  should  show 
that  the  particular  case  is  one  of  a  class  within  the  jurisdiction 
of  the  court.'  The  general  rule  is,  as  is  well  known,  that  where 
the  court  is  one  of  general  jurisdiction  the  presumption  is  that 


1  Smith  r*.  Adams,  130  U.  S.  107; 
Rhode  Island  v.  Massachusetts,  12  Pet- 
er-. 657,  718;  I'ni'  -■.  Arre- 
dond  '  rrignon  t'. 
Astor,  2  1  low  R  iggs  -  .  fohn- 
■  Wall.  I'*''.  [87;  Jackson  v. 
Smith,  120  Ind.  520;  Hoard  of  Com. 
v.  Markle,  p  Ind.  96;  Dequindre  v. 
William-.  3  1  Ind.  ^44;  State  :  .  Wake- 
field. 15  Atl.  R.  iSi. 

-  United     State-    :>.    Arredondo,     12 
Ex    parte 
■  [93,  -"7- 
Bank,    10   Peters,    149, 


17^;  Jackson  v.  Smith,  120  Ind.  520; 
State  v.  Wolever,  127  Ind.  306;  Shel- 
don r.  Newton,  3  Ohio  St.  494;  Le  Roy. 
v.  Clayton.  2  Sawyer,  j.93,  (.99;  Babb 
v.  Bruere,  21,  M0.App.604:  Kendall  v. 
v.  United  State-,  u  Peters,  524,  623; 
Smith  v.  Adams,  130  U.  S.  167;  Cor- 
netl  v.  Williams,  20  Wall.  226;  ///  re 
White.  17  Fed.  R.  723;  In  re  Bogart, 
2  Sawyer,  396;  Lantz  :•.  Maffett,  102 
Ind.  23;  Schroeder  v.  Merchants  Ins. 
Co.,  io|  111.  71;  Push  v.  Hanson,  70  111. 
j.80. 


(12) 


APPELLATE  JURISDICTION.  13 

jurisdiction  exists,  and  it  is  not  necessary  that  the  record  should 
affirmatively  show  the  jurisdictional  facts.1  Jurisdiction  of  the 
subject  can  not  be  given  to  any  court  by  the  parties  since  such 
jurisdiction  can  be  conferred  only  by  law.2  It  is  to  be  observed 
that,  as  appeals  are  tried  by  the  record,  the  rule  first  stated  can 
have  little  practical  value  in  appellate  procedure  since  the 
question  of  jurisdiction  must  ordinarily  be  determined  by  the 
recitals  and  statements  of  the  record.3  Where  the  record  dis- 
closes the  fact  that  the  appellate  tribunal  has  no  jurisdiction, 
that  tribunal  will,  of  its  own  motion,  dismiss  the  appeal,4  un- 
less there  is  a  statute  requiring  that  the  case  be  remanded  to 
another  court.  Where  there  is  such  a  statute  the  case  should 
be  transferred  to  the  proper  court. 

§  1 3.  Consent  can  not  confer  Jurisdiction  of  Subject — It  is  a  neces- 
sary sequence  from  the  two  cardinal  principles  stated  that  parties 
can  not  by  consent  confer  upon  the  appellate  tribunal  authority 
to  decide  questions  which  are  not  in  the  record,  except  in  cases 
where  it  has  original  jurisdicton.  Where  the  question  is  one 
of  a  purely  appellate  nature  it  can  only  be  exhibited  and  deter- 
mined by  the  record,  so  that  when  the  appellate  power  is  in- 
voked the  court  must  confine  its  investigation  and  its  decision 
to  the  record.  It  is,  therefore,  correctly  held  that  where  the 
questions  are  not  exhibited  by  the  record  the  parties  can  not 

1  Shewaker  v.  Bergman,  123  Ind.  155;  .  3  Mc  Arthur  v.  Schultz,  7S  la.  364,  S. 
Bass  Foundry,  etc.,  v.  Board,  115  Ind.  C.  43  N.  W.  Rep.  223;  Walker  :•. 
234;  Board,  etc.,  v.  Leggett,  115  Ind.  Steele,  121  Ind.  436,  S.  C.  22  N.  E.  Rep. 
544;    Chapell  v.  Shuee,   117  Ind.  4S1.  142. 

See  Questions  that  may  be  first  made         *  Stamps  v.  Newton,  3  How.  (Miss.) 

on  appeal,  Chapter  XX.  34;     Stearic's    Appeal,  3    Grant,    270; 

2  Smith  v.  Myers,  109  Ind.  1;  Rob-  Dykeman  v.  Budd,  3  Wis.  640,  643; 
ertson  v.  State,  109  Ind.  79;  Doctor  v.  Verbeck  v.  Verbeck,  6  Wis.  157,  161; 
Hartman,  74  Ind.  221;  Trotter  v.  Neal,  Cerro  Gordo  Co.  v.  Wright  Co.,  59 
50  Ark.  340,  S.C.  7  S.W.  Rep. 384;  State  Iowa,  485;  Musselman's  Appeal,  101 
T'.The  Whitewater  Canal  Co.,  8  Ind. 320;  Pa.  St.  165,169;  Mathie  v.  Mcintosh, 
State  v.  Richmond,  6  Foster  (N.  H.),  40  Wis.  120;  Richards  V.  Lake  Shore. 
232;  Baker  v.  Chisholm,  3  Tex.  157;  etc.,  Co.,  25  111.  App.  344,  S.  C.  124  111. 
Chapman  v.  Morgan,  2  Greene  (la.),  516,  16  N.  E.  R.  909;  Green  v.  Creigh- 
374;  Titus  v.  Relyea,8  Abbott's  Pr.  R.  ton,  10  Smedes  &  M.  159,  S.  C.  48  Am. 
177;  Burns  v.  Nash,  23  111.  App.  552;  Dec.  742;  In  re  Larson,  96  N.  Y.  381. 
In  re  Rade,  9  N.  Y.  Supp.  S12. 


1  l  APPELLATE   PROCEDURE. 

confer  authority  upon  the  appellate  tribunal  to  decide  them.1  A 
distinction  exists,  as  indicated  by  what  has  been  said,  between 
cases  where  the  exercise  of  purely  appellate  authority  is  in- 
voked and  eases  where  the  jurisdiction  is  original,  or  is  in  the 
nature  of  original  jurisdiction.  As  an  instance  of  a  case  of  the 
last  named  class  may  be  taken  that  of  an  application  for  a  man- 
date ;  of  the  first  class  may  be  taken  the  case  of  a  plea  in 
bar  to  the  assignment  of  errors.  It  can  not,  indeed,  be  said 
with  strict  accuracy  that  an  application  for  a  writ  of  mandate  is 
a  matter  of  original  jurisdiction  save  in  rare  instances,  for  such 
applications  are  ordinarily  in  aid  of  the  appellate  jurisdiction, 
but  there  are,  nevertheless,  cases  where  there  is  purely  original 
jurisdiction.2 

§  14.  Fictitious  Cases — Growing  out  of  the  general  principles 
stated  and  closely  resembling  the  doctrine  discussed  in  the 
preceding  paragraph,  is  the  rule  that  appellate  tribunals  enter- 
tain jurisdiction  only  of  real  questions  arising  in  actual  cases. 
They  will  not  determine  questions  where  there  is  no  actual  con- 
troversy, nor  will  they  determine  mere  abstract  or  hypothetical 
questions;5  It  is  seldom,  however,  that  the  question  whether 
there  is  an  actual  controversy  arises,  for  where  a  case  proceeds 
in  the  ordinary  mode  it  will  be  assumed,  in  the  absence  of  a 
counter  showing,  that  there  is  an  actual  controversy  between  the 
parties. 

£  15.  Appeal  Defined — In  order  to  secure  an  adequate  and  in- 
telligent conception  of  what  is  meant  by  the  term  "appellate 
jurisdiction  "  it  is  necessary  to  look  with  some  care  to  the  force 
and  meaning  of  the  term  "  appeal  "  when  used  in  law  proced- 

Newman,  35  Ind.  generally,  Crane  v.  Farmer  (Col.),  23 

i".     Im  this  case  the  true  rule  was  admi-  Pac.  455;  Planters  Ins.  Co.  v.  Cramer, 

•ablv  stated   by  Worden,   ]..  who  said:  47    Miss.   200;   Marbury  v.  Madison,  1 

"The  parties,  however,  bv  theagreement  Cranch.  137. 

I,   have  attempted   to  present  for  2  State    v.    Noble,    11S  Ind.  350;  Ex 

our  determination,  certain  questions  not  parte  Griffiths,  11S  Ind.  83. 

presented    by  the    record.     This  is  an  3  Little   v.   Bowers,    134    U.    S.  547; 

appellate  court,  ami  the  agreement  of  Chicago,  etc.,  Co.  v.  Dey  (Iowa), 41  N. 

the  parties  will  not  be  effectual  to  con-  W.  R.  17;  Pierse  v.  West,  29  Ind.  266. 

vert  it  into  a  nisi prius  tribunal."    See,  * 


APPELLATE  JURISDICTION.  15 

ure.  The  word  "  appeal  "  is  very  often  inaccurately  employed 
even  by  judges  and  text  writers,  but  for  our  present  purpose  it 
is  essential  to  gfive  it  a  somewhat  definite  and  restricted  mean- 
ing.  The  word,  when  accurately  used  in  law  matters,  means 
the  removal  of  a  suit  in  equity,  or  of  an  action  at  law,  from  an 
inferior  court  to  a  superior  court.1  The  word  is  sometimes  ap- 
plied to  the  removal  of  a  matter  from  the  decision  of  an  inferior 
officer  to  a  superior  officer,  but  this  is  not,  in  law  affairs,  an  ac- 
curate use  of  the  term,2  since  the  word,  when  properly  used, 
means  the  removal  of  a  case  from  one  court  to  another.  The 
matter  of  appeals  is  essentially,  and  throughout,  judicial,  and 
there  can,  in  legal  contemplation,  be  no  appeal  where  there  is 
no  decision  by  a  judicial  tribunal.  Two  things  are  essential, 
the  decision  of  a  judicial  tribunal  of  original  jurisdiction,  and  a 
superior  court  invested  with  authority  to  review  the  decision  of 
the  inferior  tribunal.3 

§  16.  Appellate  Jurisdiction  Defined — Appellate  jurisdiction  is 
the  authority  of  a  superior  tribunal  to  review,  reverse,  correct, 
or  affirm  the  decisions  of  an  inferior  judicial  tribunal  in  cases 
where  such  decisions  are  brought  before  the  superior  court  pur- 
suant to  law.  Appellate  jurisdiction  exists  only  in  courts,  and 
is,  strictly  speaking,  the  authority  to  review  what  has  been  pre- 
viously the  subject  of  investigation  and  determination  by  a 
court.4     Judicial  power  resides  in  courts,  and  hence  it  is  es- 

1  Leach  v.  Blakely,  34  Vt.  134,  136;  difference  between  a  writ  of  error  and 

United  States  r.Wonson,  1  Gallison  (U.  an  appeal,  see  Wiscart  v.  D'Auchy,  3 

S.C.  C),  5, 13.  Under  our  system,  an  ap-  Dallas,  321,  327. 

peal  removes  a  cause  from  an  inferior  2  Hestres  v.  Brennan,  50  Cal.  210,  217. 

court  to  one  of  superior   jurisdiction.  3  This  consideration  becomes  of  im- 

We  do  not  deem  it  necessary  to  speak  portance  in  considering  the  question  of 

of  the  limited  effect  given  to  the  word  the  right  of  the  legislature  to  authorize 

"  appeal "  in  jurisdictions  where  a  writ  an  appeal  from  the  decisions  of  admin- 

of  error  is  one  of  the  modes  of  remov-  istrative    or    ministerial    officers    upon 

ing  a  case  from  an  inferior  to  a  superior  questions  not  judicial  in  their  nature, 

court,  inasmuch  as  under  our  law  we  4  Judge   Story  says:     "The  essential 

have  only  the  one  mode,  that  of  appeal,  criterion  of  appellate  jurisdiction  is  that 

It  may  be  said  that  our  simple  system  it  revises  and  corrects  the  proceedings 

is    far    preferable    to    the    cumbersome  in  a  cause  already  instituted,  and  does 

system  which  has  been  adopted  in  many  not  create  that  cause.     In  reference  to 

of  the  States.     For  a  statement  of  the  judicial    tribunals,  an   appellate  juris- 


16  APPELLATE    PROCEDURE. 

sential  that  the  original,  as  well  as  the  appellate  decision, 
should  be  made  by  a  court.  It  is  clear  enough  that  only  a 
court  can  revise  judicial  decisions,  so  that  there  is  seldom  diffi- 
culty in  determining  the  general  right  to  assert  appellate 
authority  ;  but  it  is  sometimes  difficult  to  determine  from  what 
decisions  and  from  what  officers  or  bodies  an  appeal  will  lie. 

ii  17.  Appellate  Jurisdiction  one  of  Review — It  seems  clear  that 
the  exercise  of  what  is  strictly  appellate  jurisdiction  can  not  be 
invoked  where  there  has  been  no  decision  by  a  court  composed 
of  judges,  and  that  an  appeal  will  not  lie  directly  to  a  superior 
court  of  exclusive  appellate  jurisdiction  from  the  decision  of 
bodies  or  officers  possessing  quasi  judicial  power,  as,  for  in- 
stance, the  common  council  of  a  municipal  corporation,  or  the 
trustees  of  a  township.  There  must  be  a  decision  by  a  court, 
not  simply  the  decision  of  a  body  with  quasi  judicial  authority, 
in  order  to  entitle  a  party  to  ask  a  review  by  an  appellate  tri- 
bunal. This  must  be  true  for  the  reason  that  where  a  court  is 
invested  with  appellate  jurisdiction  by  the  constitution  it  can 
not  be  required  to  exercise  purely  original  jurisdiction.1  It  is, 
of  course,  true  that  where  the  constitution  provides  that  original 
jurisdiction  may  be  imposed  upon  an  appellate  court,  it  may  be 
conferred  by  statute,2  but  where  no  original  jurisdiction  is  con- 
ferred, either  by  the  constitution  or  by  a  statute  enacted  under 
constitutional  authority,  none  exists  in  a  court  essentially  of 
appellate  jurisdiction.3  It  is  evident  from  the  nature  of  the  two 
kinds  of  jurisdiction  that  it  would  be  inconsistent  to  invest  one 
court  with  both.     Except  to  a  very  limited  extent,  both  original 

diction,    therefore,    necessarily    implies  l  Marbury  v.  Madison,  i  Cranch.  137, 

thai  the  subject-matter  has  already  been  17^;  Weston  v.  City  Council,  2  Peters, 

instituted   in  and  acted  upon  by  some  449.  The  appellate  tribunal  decides  upon 

other   court,  whose  judgment   or  pro-  its  own  jurisdiction;  the  trial  court  can 

ceedings  are  £0  be    revised.     This   ap-  not  settle  that  question  for  it.    Ilunger- 

pellate  jurisdiction  may  be  exercised  in  ford  v.  dishing,  8  Wis.  32  \\  Benson  v. 

a   variety  of  tonus,  and,  indeed,  in  any  Christian  (Ind.),  Nov.  17,  1891. 

form  which  the  legislature  may  choose  *  Osborne  v.  Bank,  9  Wheat.  738,820; 

to    prescribe,    but    still    the   substance  Ex  farte  Henderson, 6 Fla.  279;  Hawes 

must  exist  before  the  form  can  be  ap-  v.  People,  124  111.  560. 

plied  to  it."     j  Story  Const.,  §  1761.  s  Hubbell  v.  McCourt,  44  Wis.  584. 


APPELLATE  JURISDICTION.  yj 

and  appellate  jurisdiction  can  not  exist  in  the  same  tribunal 
without  trenching  upon  true  principle.  When,  therefore,  a 
tribunal  is  created  for  appellate  purposes  and  is  essentially  a 
court  for  the  trial  of  appeals,  original  jurisdiction  can  not  be 
attributed  to  it  where  there  are  no  constitutional  or  statutory 
provisions  conferring  such  jurisdiction. 

§18.  Jurisdiction  for  One  Purpose  Retained  for  All— It  has  been 
held  that  where  an  appellate  tribunal  obtains  jurisdiction  of  a 
case  for  one  purpose  it  will  retain  it  for  all,  and  that  it  will  give 
judgment  upon  all  questions  properly  presented  for  its  decision.1 
This  ruling  is  in  harmony  with  the  rule  which  has  long  pre- 
vailed, that  where  a  court  of  equity  obtains  jurisdiction  for  one 
purpose  it  will  retain  it  for  all  purposes.2  This  must  necessarily 
be  the  rule,  since  any  other  would  involve  the  legal  absurdity 
of  disjointing  a  single  case  and  turning  over  one  fragment  to 
one  court  and  another  parcel  to  another  court.3  This  conclusion 
does  not  conflict  with  that  established  by  the  decisions  of  the 
Supreme  Court  of  the  United  States,  wherein  it  is  declared  that 
in  appeals  from  the  State  courts  only  Federal  questions  will  be 
decided  by  that  tribunal.4  These  decisions  do  not  control  the 
question  for  the  obvious  reason  that  the  Federal  court  is  a 
tribunal  of  a  different  and  distinct  government  from  that  of  the 
State,  and  has  exclusive  ultimate  jurisdiction  of  Federal  ques- 
tions. 

1  Pittnam  v.  Wakefield  (Ky.),  13  S.  rule  is  that  if  a  party  appeals  from  a 
W.  Rep.  525;  Feder  v.  Field,  117  Ind.  part  of  a  decree,  he  admits  the  remain- 
3S6.  der  to  be  correct."     2  Daniels'  Ch.  Pr. 

2  Wood  v.  Ostram,  29  Ind.  177;  Field  (15th  ed.),  1467;  Clowes  v.  Dickenson, 
v.  Holzman,  93  Ind.  205;  Kimble  v.  8  Cow.  32S;  Kelsey  v .  Western,  2  N.  Y. 
Seal,  92  Ind.  276,  282;  Carmichael  v.  500,  505;  Norbury  v.  Meade,  3  Bligh, 
Adams,  91  Ind.  526;  Faught  v.  Faught,  261;  Parker  v.  Morrell,  2  Phil.  453,  461. 
98  Ind.  470,  472;  Feder  v.  Field,  117  i  In  re  Kemmler,  136  U.  S.  436,  34 
Ind.  3S6,  3S9;  Albrecht  v.  The  C.  C.  Law.  Co.  Ed.  439;  Giles  v.  Little,  134 
Foster  Lumber  Co.  (Ind.),  26  N.  E.  R.  U.  S.  645,  36  Law.  Co.  Ed.  623;  City  of 
*57-  San  Francisco  -'.  Itsell,  133  U.  S.  65,  33 

3  "A  party  Avill  not  be  allowed  to  ap-  Law.  Co.  Ed.  241;  Beatty  v.  Benton, 
peal  piecemeal;  that  is,  he  can  not  ap-  135  U.  S.  244,  34  Law.  Co.  Ed.  124; 
peal  from  part  of  a  decree  by  one  pe-  Hale  v.  Akers,  132  U.  S.  554,  ^  Law. 
tition  and  afterwards  appeal  from  an-  Co.  Ed.  442. 

other   part    by  another    petition.     The 

2 


18  APPELLATE   PROCEDURE. 

§  19.  Statutory  Mode  of  Review  Exclusive — A  question  as  to  the 
mode  of  reviewing  judgments  may  be  here  touched  upon,  for 
although  not  directly  connected  with  the  subject  of  our  discus- 
sion, it  is  yet  so  nearly  allied  to  it  as  to  render  its  discussion  con- 
venient  and  not  altogether  illogical.  It  may  be  said  with  ac- 
curacy that  the  general  rule  is  that  where  a  valid  statute  pro- 
vides the  mode  of  reviewing  a  judgment,  that  mode  must  be 
pursued.1  This  question  connects  itself  with  the  general  subject 
of  appellate  jurisdiction,  inasmuch  as  a  court  can  not  have 
authority  over  a  case  where  parties  assume  to  bring  it  within 
the  authority  of  the  court  in  a  mode  wholly  unauthorized  by  law. 
The  rule  wre  have  stated  can  not,  of  course,  control  where  there 
is  a  law  under  which  jurisdiction  may  exist  over  the  general 
subject  and  errors  or  irregularities  occur  in  attempting  to  com- 
ply  with  the  law.  Nor  is  the  rule  so  important  under  a  system 
like  ours,  where  there  is  one  method  of  securing  a  review  of  a 
judgment  by  an  appellate  tribunal,  as  it  is  in  States  where  there 
are  both  appeals  and  writs  of  errors.  But,  as  will  appear  in 
subsequent  pages,  the  rule  is  not  without  importance  in  this 
State. 

§  20.  Incidents  of  Appellate  Jurisdiction — Appellate  jurisdic- 
tion is  naturally  the  essential  attribute  of  a  court  created  by 
constitutional  warrant  for  reviewing  the  decisions  of  inferior 
courts.  The  jurisdiction  of  an  appellate  tribunal  is  not  exer- 
cised over  ministerial  or  administrative  officers  directly,  for 
when  it  exercises  such  authority  it  proceeds  as  a  court  of  orig- 
inal jurisdiction.2  But  it  is  not  to  be  understood  that  an  ex- 
press statutory  provision  is  required  to  confer  upon  an  appellate 
tribunal  authority  to  exercise  auxiliary  authority  in  aid  of  its 
appellate  power,  although  such  auxiliary  authority  may  be  in 

1  Anderson  v.  People,  2S  III.  App.  court  said.  "The  term,  then,  'appellate 
317;    Lang   Syne   Gold   Mining  Co.  v.    jurisdiction' as  used  in  the  constitution 

127,  S.  C.    t8  Pac.    R.  has  some  other  meaning  than  that  there 

Stal      v.   Easton,  etc.,  Co.  (Md.),  should  be  merely  an  appeal  from  some 

20  At;.  K.  :  jj;    Idaho,  etc.  Co.  v.  Brad-  decision  or  act  of  an  officer  of  the  State, 

bury,  [32  U.  S.  509,  33  Law.  Co.   Ed.  and  it  is  this  meaning  of  the  term  that 

toSup.Ct.  R.  177.  i>    sought    for."       See,    also,   Crane    v. 

2  Auditor  of  State  t\  The  Atchison,  Giles,  3  Kan.  54;  Ex  parte  Logan 
etc.,  Co.,  6  Kan.  500.     In  that  case  the  Branch  Bank,  1  Ohio  St.  433. 


APPELLATE  JURISDICTION.  19 

its  nature  original,  for  all  courts  of  the  rank  of  appellate  courts 
proper  have  such  general  powers  as  are  necessary  to  enable 
them  to  effectually  exercise  the  jurisdiction  conferred  upon 
them. 

§  21.   Power  of  Appellate  Tribunals  to  frame  Judgments — The 

general  authority  to  review  and  revise  necessarily  includes  the 
right  to  enforce  the  law  and  administer  justice.  In  the  exercise 
of  this  authority  an  appellate  tribunal  may  so  mold  its  judg- 
ments as  to  secure  the  proper  relief  to  the  parties  entitled  to  it.1 
The  fact  that  a  question  may  be  presented  in  a  particular  mode 
does  not  always  restrict  an  appellate  court  to  a  particular  course  ; 
for  it  may,  upon  an  inspection  of  the  whole  record,  pronounce 
such  a  judgment  as  will  secure  justice  to  the  parties.  It  is  in- 
conceivable that  a  high  court  of  justice,  such  as  an  appellate 
tribunal,  may  not,  upon  an  investigation  of  the  record,  so  frame 
its  judgment  as  to  prevent  the  defeat  of  justice  by.  technical 
and  arbitrary  rules.2  The  denial  of  this  right  involves  the  af- 
firmation that  the  highest  courts  can  not  award  justice,  and  this 
conclusion  can  not  be  vindicated,  since  the  underlying  and  sov- 
ereign principle  is  that  the  right  of  appeal  insures  to  litigants 
who  have  obeyed  the  substantive  rules  of  law  and  conformed 
to  the  rules  of  procedure  a  judgment  awarding  them  justice 
under  the  laws  of  the  land.  It  must  be  true,  therefore,  that  a 
high  appellate  tribunal  may  deliver   and  enforce  a  judgment 


1  In  Piqua  Bank  v.  Knoup,  6  Ohio,  vested  exercises  a  supervising  or  cor- 

342,  it  was  said  by  one  of  the   judges  recting  control." 

that,  "Appellate  jurisdiction  is  the  2  This  general  doctrine  is  fully  recog- 
cognizance  which  a  superior  court  nized  in  Buchanan  v.  Milligan,  10S  Ind. 
takes  of  a  case  removed  to  it  by  appeal  433,  435;  Shannon  v.  Hay,  106  Ind.  5S9; 
or  writ  of  error  from  the  decision  of  an  Sohn  v.  Cambern,  106  Ind.  302;  West- 
inferior  tribunal.  The  power  of  the  ern  Union  Tel.  Co.  v.  Brown,  108  Ind. 
appellate  court  necessarily  includes  the  53S;  Cottrell  v.  Nixon,  109  Ind.  378; 
power  not  only  to  reverse  the  judgment,  Roberts  v.  Lindley,  121  Ind.  56,59; 
but  also  to  control  and  direct  the  sub-  Louisville,  etc.,  Co.  v.  Etzler,  119  Ind. 
sequent  action  of  the  subordinate  court.  39;  Murdock  v.  Cox,  118  Ind.  266,  269; 
Appellate  jurisdiction,  therefore,  always  Brown  v.  Jones,  113  Ind.  46,  50;  Bar- 
implies  the  existence  of  subordinate  tholomew  v.  Pierson,  112  Ind.  430; 
courts  in  the  same  judicial  organization  Parker  v.  Hubble,  75  Ind.  580;  Yerkes 
over   which    the    court   in  which    it  is  v.  Sabin,  97  Ind.  141. 


APPELLATE  PROCEDURE. 

that  will    prevent  wrong  and    award   justice   to  the  parties  en- 
titled to  it. 

§  22.  Grant  of  Appellate  Jurisdiction — The  grant  of  appellate 
jurisdiction,  whether  made  by  the  constitution  or  by  a  statute, 
necessarily  vests  in  the  tribunal  designated  all  powers  of  an 
incidental  nature  that  are  required  to  make  the  granted  juris- 
diction effective.  Upon  this  principle  it  is  held  that  in  every 
appellate  tribunal  resides  the  power  to  coerce  obedience  to 
its  orders,  writs  and  mandates.1  This  incidental  power  may, 
indeed,  be  safely  placed  on  higher  ground,  for  it  may  be  se- 
curely rested  on  the  ground  that  all  appellate  tribunals,  as 
of  the  very  essence  of  their  existence,  possess  inherent  judi- 
cial powers.  It  seems  impossible  to  conceive  of  the  existence 
ol  a  high  judicial  tribunal  so  hedged  in  by  legislative  restric- 
tions as  to  be  incapable  of  effectively  and  freely  exercising 
the  branch  of  sovereign  power  which  is  placed,  and  must  of 
necessity  be  placed,  in  the  judiciary  in  all  free  governments. 
It  the  legislature  can  shackle  the  judicial  power  so  that  its 
judgments  can  not  be  made  effective,  or  its  functions  exercised 
as  the  judges  deem  it  right  and  just  to  exercise  them,  then, 
courts  are  nothing  more  than  the  mere  passive  organs  of  legis- 
lative will,  pronouncing  legislative  decisions  and  not  judicial 
judgments.  It  is,  perhaps,  not  now  possible  to  draw  the  exact 
line  between  the  two  departments,  but  there  is  a  line,  and  that 
line  has  been  again  and  again  recognized  as  existing,  although 
it  has  never  been  traced  with  distinctness. 

>'  23.    Determination  of  the  Question  of  Right  of  Appeal — An  es- 
sential incident  of  superior  appellate  jurisdiction  is  that  the  ap- 
pellate tribunal  must  determine  wdien  an  appeal  will  lie  and 
ether  it  is  well  taken;  the  decision  of  these  questions  is  for 
tli<-  higher  tribunal,  and  its  freedom  of  action  can  not  be  fettered 

1  Mitcheson  Ky.)  Issues  of  fact  may  be  formed  on  appeal 

324.     This  incidental  power  is  inherent  and  there  determined.     Brown  v.  Car- 

in  every  appellate  tribunal.    Inorderto  raway,  47  Miss.  668;  Planters  Ins.  Co. 

maintain   it-  existence   and  enforce  its  :•.  Cramer.  17  Miv<.  200,  206;    Belew  v. 

the  courts  may  assume  jurisdic-  Jones,  56  Miss.  ^j2. 
ti.m  essentially  original  in  its  nature. 


APPELLATE  JURISDICTION'.  21 

by  the  rulings  of  the  lower  court.1  It  is  not,  of  course,  within 
the  power  of  any  tribunal  to  create  an  independent  system  of 
appellate  procedure,2  for  all  courts,  high  or  low,  must  yield  to 
the  law  of  the  land.  But  it  is  for  the  superior  appellate  tribunal 
to  determine  the  nature  and  extent  of  its  jurisdiction,  guided 
and  limited,  however,  by  the  statutory  and  common  law,  and  it 
is  also  for  that  tribunal  to  pronounce  the  ultimate  decision  upon 
the  question  whether  an  appeal  has  been  properly  taken. 

§  24.  Blending  of  Legal  and  Equitable  Jurisdiction — The  appel- 
late jurisdiction  under  statutes  combining  in  one  system  legal 
and  equitable  rights  and  providing  for  one  remedial  system  is 
necessarily  different  in  detail  from  appellate  jurisdiction  in  the 
States  where  the  distinction  between  law  and  equity  is  rigidly 
maintained,  but  the  same  great  principles  prevail  whether  the 
old  system  remains  in  force  in  all  its  vigor  or  whether  it  is 
modified  by  the  code  svstem.3  The  reformed  system  is  simpler, 
more  efficacious  and  less  technical  than  the  old  with  its  cum- 
bersome petitions  for  leave  to  take  out  a  writ  of  error  and  its 
intricate  machinery.  Appeal  under  the  code  system  is  much 
more  than  an  appeal  under  the  old  system,  and,  yet,  in  some 
respects  an  appeal  under  the  code  system  may  be  less  compre- 
hensive in  its  scope  than  an  appeal  under  the  old  system.4     An 

1  Keighler  v.  Savage,  etc.,  Co.,  12  Md.  wards  v.  Vandemack,  13  111.  633;  Street 
3S3;  Lester  v.  Howard,  24  Md.  233;  v.  Francis, 3  Ohio,  277;  Groverr.  Coon, 
Thompson  v.  McKim,  6  Har.  &  J.  302;  1  N.  Y.  536;  McNulty  v.  Batty,  10 
Armstrong  v.  Athens   Co.,   16  Peters,  How.  (U.  S.)  71. 

281;     United  States  v.  Emholt,  105  U.  3  The   truth   is   that    the    great   and 

S.  414.  fundamental  principles  of  remedial  jus- 

2  In  the  case  of  the  Attorney  General  tice  must  be  the  same  no  matter  by 
v.  Sillem,  10  H.  L.  Cases,  704,  Lord  what  name  they  may  be  called  or  what 
Chancellor  Westbury  said:  "Thecrea-  forms  they  may  assume.  Legislatures 
tion  of  a  new  right  of  appeal  is  plainly  may  modify  forms  and  change  names, 
an  act  which  requires  legislative  author-  but  the  essential  attributes  of  the  great 
itv.  The  court  from  which  the  appeal  principles  of  remedial  justice  can  not 
is  given,  and  the  court  to  which  it  is  be  changed  bv  legislative  declarations. 
given,  must  both  be  bound,  and  that  4  "A  writ  of  error,"  says  Judge  Cur- 
must  be  the  act  of  some  higher  power,  tis,  ''carries  up  nothing  but  questions 
It  is  not  competent  to  either  tribunal,  or  of  law,  and  these  questions  of  law  are 
to  both  collectively,  to  create  any  such  to  be  determined  according  to  the  facts 
right."  The  Schooner  Constitution  v.  which  are  found  in  the  record — an  ap- 
Woodworth,   1    Scam.   (111.)    511;     Ed-  peal   carries  up   everything — it   sub>ti- 


APPELLATE   PROCEDURE. 


appeal  under  the  code  system  combines  all  that  could  be  ac- 
complished by  a  writ  of  error  and  all  of  value  that  could  be 
omplished  by  an  appeal  under  the  rules  of  the  chancery 
svstem.  It  unites  in  one  system  the  merits  of  the  two  former 
systems  and  excludes  the  vices  of  arbitrariness  and  technicality 
which  deformed  the  common  law  mode  of  procedure.  In  the 
appellate  jurisdiction  of  States  with  statutes  similar  to  ours  the 
chancery  element  is  the  predominant  one  but  the  common  law- 
element  remains,  nevertheless,  an  important  factor. 


tutes  the  higher  court  in  place  of  the 
lower  court,  and  all  questions,  whether 
of  law  or  of  fact,  depending  upon  evi- 
dence or  law  are  re-examinable  by  the 
appellate  court  just  as  they  were  orig- 
inally examined  by  the  court  having 
original  jurisdiction."  Jurisdiction  of 
the  Courts  of  the  United  States,  6l.  It 
is  evident  that  an  appeal  under  the  code 

•    m    do^s    not    necessarily    bring   up 
the    entire    case;   it  is   indeed    doubtful 


whether  it  necessarily  had  that  effect 
in  every  instance  under  the  former  sys- 
tem. Vanderveer  v.  Ilolcomb,  17  N.J. 
Eq.  547.  Nor  does  an  appeal  under  the 
code  system  require  the  appellate 
tribunal  to  re-examine  questions  of  law 
and  fact  as  they  were  examined  in  the 
trial  court.  So  far  as  concerns  ques- 
tions of  law  examinable  on  appeal  the 
rule  which  prevailed  in  the  common 
law  procedure  is  still  the  dominant  one. 


CHAPTER  III. 


THE    SUPREME    COURT. 


425.   The  rank  of  the  Supreme  Court.  §36. 

26.  The  repository  of  appellate  juris-  37. 

diction.  38. 

27.  Can   not   be   transformed   into  a  39. 

nisi  fritis  court.  40. 

28.  Mode  of  procedure.  41. 

29.  Trial  of  questions  of  fact.  42. 

30.  No  right  to  trial  by  jury  on  appeal. 

31.  Territorial  jurisdiction.  43. 

32.  Constitutional  questions.  44. 

33.  Howconstitutionalquestions  must 

appear.  45. 

34.  Statutory  jurisdiction.  46. 

35.  Classes  of  cases  taken  from  the 

jurisdiction    of    the     Supreme 
Court. 


Incidents  of  a  class  go  with  it. 

Equity  cases. 

What  are  considered  equity  cases. 

Foreclosure  of  liens  on  property. 

Title  to  land — Cases  involving. 

Prosecutions  for  felony. 

Actions  to  recover  statutory  pen- 
alties. 

Municipal  ordinances. 

Where  the  principal  appellate  jur- 
isdiction is  vested. 

Inherent  powers. 

Opinions — Constitutional  re- 
quirements. 


§  25.  The  Rank  of  the  Supreme  Conrt — The  Supreme  Court  is 
the  highest  judicial  tribunal  of  the  State.  This  conclusion  is 
required  by  the  words  of  the  constitution.1  But  there  is  an  ad- 
ditional reason  for  the  conclusion  stated.  In  the  very  necessity 
created  by  a  system  of  government  of  delegated  and  distributed 
powers  there  must  be  lodged  somewhere  supreme  and  para- 
mount judicial  power.  It  is  inconceivable  that  one  element  of 
sovereign  power  can  be  so  dissected  and  distributed  that  it  may 
be  parceled  out  among  several  tribunals.2  Supreme  judicial 
power  is  no  more  capable  of  partition  than  is  the  executive  or 
the  legislative  power.     If  it  were,  there  could  be  no  court  of 


1  Const.,  Article  7,  §§  1  to  4;  Tesh 
v.  Commonwealth,  4  Dana  (Ky.),  522; 
Frame  v.  Trebble,  1  J.  J.  Marshall 
(Ky.),  205;  Stark  v.  Thompson,  3  J. 
J.  Marshall  (Ky.),  300. 

2  We  do  not  enter  into  the  field  of 
strife  so  much  fought  over  by  those  who 


maintain  that  sovereign  power  is  indi- 
visible and  those  who  oppose.  We 
content  ourselves  with  saying  that  a 
unit  of  power,  such  as  the  judicial,  can 
not  be  so  cut  into  parts  so  as  to  place 
one  supreme  part  in  one  court  and  an- 
other  supreme  part  in  another  court. 


(23) 


•j!  APPELLATE   PROCEDURE. 

final  resort,  and  if  no  such  court,  then,  no  question  could  ever 
be  finally  and  authoritatively  decided.  If  there  were  no  tribu- 
nal possessing  power  to  put  a  ipiestion  at  rest,  confusion  leading 
to  anarchy  would  necessarily  be  the  ultimate  result.  It  is  true, 
therefore,  that  there  is,  and  must  be,  in  every  organized  free 
government,  a  supreme  judicial  tribunal. 

g  26.  Repository  of  Appellate  Jurisdiction — The  Supreme  Court, 
as  the  highest  judicial  tribunal  of  the  commonwealth,  necessa- 
rily possesses  all  the  appellate  jurisdiction  distributed  by  the 
constitution  or  the  laws  not  elsewhere  lodged  by  valid  enact- 
ments. What  part  of  the  appellate  jurisdiction  less  than  that 
which  is  in  its  nature  paramount  and  supreme  may  be  taken 
from  it  and  conferred  upon  inferior  tribunals,  it  would  be  very 
difficult  to  determine,  but  this  much  is  certain :  All  of  the  ap- 
pellate jurisdiction  not  expressly  or  impliedly  taken  from  the 
Supreme  Court  remains  in  that  tribunal.  All  jurisdiction  of  an 
appellate  character  conferred  upon  other  tribunals  is  carved 
out  of  that  which  originally  dwelt  in  the  Supreme  Court.  The 
great  jurisdictional  field  is  that  of  the  Supreme  Court,  and  all' 
that  is  given  to  other  tribunals  is  taken  from  that  great  field, 
leaving  all  parts  and  parcels  of  the  field  not  taken  in  the  tribu- 
nal originally  the  possessor  of  it.1  A  statute  is  required  to  sub- 
tract from  its  jurisdiction,  and  it  loses  only  what  is  validly  sub- 
tracted. 

§  27.  Can  not  be  Transformed  into  a  Nisi  Prius  Court — The  Su- 
preme Court  is  essentially  and  primarily  an  appellate  tribunal. 
The  constitution  ordains  that  this  shall  be  its  character.  It  is  true 
that  it  is  provided,  that  "it  shall  also  have  such  original  juris- 
diction as  the  general  assembly  may  confer,"-  but  this  isolated 
and  fragmentary  provision  can  not,  in  view  of  other  constitu- 
tional provisions  and  of  the  purpose  for  which  the  court  was 
created,  be  construed  as  empowering  the  legislature  to  trans- 
form the  highest  judicial  tribunal  of  the  State  into  a  mere  nisi 
prius  court. :!     Constitutions  are  to  be  construed  by  the  light  of 

barU   Sweeney,  126  Ind.  583.  outlined   in    the    preceding    paragraph, 

2  Const.,  Article  7.  §  4.  that  the  highesl  constitutional  tribunal 

furthei    reasons     of  the  State  must,  because  of  the  parti- 


THE   SUPREME  COURT.  25 

attendant  facts  and  with  reference  to  existing  systems.  These 
considerations,  when  taken  in  connection  with  other  provisions 
of  the  constitution  and  in  connection  with  the  fact  that  the 
article  in  which  the  provision  is  found  distributes  the  whole 
judicial  power  of  the  State,  forbid  the  conclusion  that  the  high- 
est court  of  the  State  may  be  made  a  mere  trial  court  and  com- 
pelled to  hear  and  determine  controversies  as  a  court  of  orig- 
inal jurisdiction.  Doubtless  some  original  jurisdiction  may  be 
conferred  upon  the  Supreme  Court,  but  a  complete  and  radical 
transformation  can  not  be  effected  by  legislative  enactments. 

§  28.  Mode  of  Procedure — As  the  Supreme  Court  is  essentially 
an  appellate  tribunal  its  powers  are  necessarily  such  as  are  in- 
herent in  such  a  tribunal  or  are  conferred  upon  it  by  constitu- 
tional statutes,  and  its  modes  of  procedure  are  those  of  a 
tribunal  of  its  rank  and  character.  It  does  not  proceed  as  a 
trial  court  but  as  a  court  of  errors  or  appeals.  Questions  of 
fact  may,  in  rare  instances,  require  decision  as  original  ques- 
tions, but  even  in  hearing  and  deciding  such  questions  it  does 
not  proceed  as  a  trial  court  of  original  jurisdiction.  All  ques- 
tions of  fact  are,  of  necessity,  connected  with  the  appellate 
power  of  the  court,  and,  therefore,  are  not,  except  possibly  in 
rare  cases  where  the  court  is  invested  with  original  jurisdiction, 
to  be  disposed  of  as  independent  issues  originating  in  a  trial 
court.  It  seems  clear  that,  whether  trying  questions  of  fact  or 
of  law,  the  Supreme  Court  acts  as  an  appellate  tribunal  unless 
the  case  is  one  where  a  valid  statute  expressly  or  impliedly  re- 
quires it  to  act  as  a  court  of  original  jurisdiction.  If  it  does 
act  as  an  appellate  tribunal  it  is  not  bound  to  call  a  jury,  al- 
though the  question  for  decision  may  be  one  of  fact. 

§  29.  Trial  of  Questions  of  Fact — It  is  very  doubtful  whether 
an  appellate  tribunal  acting  as  such  can  call  a  jury  to  decide  a 
question  of  fact  for  it,1  as  there  is  no  law  providing  for  such  a 

tion  of  the  governmental  departments,  preme   Court    has    authority    to  call  a 

be  one  of  final  resort,  where  litigation  jury.     Buskirk's    Practice,    117.       This 

may  be  ended  by  a  decision  from  which  we  think  is  an  erroneous  conclusion  as 

there  is  no  further  appeal.  will  appear  from  the  text.     The  House 

1  Judge  Buskirk  declares  that  the  Su-  of  Lords   of  England  or  the  Supreme 


Al'I'KI.LA'l  b   PROCEDURE. 

proceeding.  It  would  require  judicial  legislation  to  make  pro- 
vision for  summoning  and  impaneling  a  jury,  and,  certainly, 
the  court  has  no  legislative  power.  It  is  true  that  the  legisla- 
ture has  assumed  to  confer  upon  the  court  authority  to  make 
rules  for  the  trial  of  questions  of  fact.1  But  this  assumption  of 
power  is  found ationless,  for  these  reasons:  First.  Legislative 
power  can  not  be  delegated.2  Second.  Only  judicial  duties 
can  be  devolved  upon  a  court.3  Another  consideration  exerts 
an  important  influence  upon  the  question,  and  that  is  this: 
Trial  by  jury  is  not  an  incident  of  appellate  jurisdiction.  It  is, 
therefore,  quite  doubtful  whether  the  legislature  has  power  to 
enact  a  statute  compelling  the  Supreme  Court  to  summon  a 
jury  to  decide  any  question.  It  seems  clear,  at  all  events,  that 
the  constitution  imposes  upon  the  court  the  duty  of  deciding 
all  questions  brought  before  it  as  an  appellate  tribunal,  and, 
that,  if  this  be  true,  the  duty  can  not  be  evaded  or  delegated. 

^  30.  No  Right  to  Trial  by  Jury  on  Appeal — It  is  quite  clear  that 
the  Supreme  Court  is  not,  under  existing  statutes,  obliged  to 
call  a  jury  to  decide  any  question.4  Our  constitution  does  not 
create  the  right  of  trial  by  jury  ;  it  simply  provides  that  the 
"trial  by  jury  shall  remain  inviolate."5  This  provision  refers 
to  the  great  right  of  trial  by  jury  as  created  and  preserved  by 
the  common  law."     As   the   right  to   trial  by  jury  in   appellate 

I    of  the   United    States   have  cer-  Cooler's  Constitutional   Lim.,  139,  14S. 

tainly  not  called   juries,  nor,  so    far   as  4  The    Board    of    Commissioners    of 

an  ascertain,  has  any  other  court  of  Huntington  Co.  v.  Brown,  14  Ind.  191. 

last    resort,  and     we    can    conceive    no  5  Const.,  Article    1,  §  20. 

■  from  which  a  righl  to  call  a  jury  6  Anderson    v.  Caldwell,  91    Ind.  451, 

can  be  derived.     Certainly  not  from  the  455;  Indianapolis,  etc.,  Co.  v.  Christian, 

common  law.      It  seems   to  us   thai  the  93  Ind.  360;   Ross   V.  Davis,  97  Ind.  79; 

duty  of  deciding  is  devolved  upon  the  Lipes  v.  Hand,  104  Ind.  503;    Laverty 

t  and  can  not  be  delegated,  in  whole  v.  State,  tog   Ind.    217;    Pennsylvania 

or  in                       uirv.  R.  R.   Co.   :\   First  German    Lutheran 

1  R.  S.  1-  Congregation,  53   Pa.    St.  445;    In  re 

Cal.  194;    In  Lower  Chatham,  35  X.J.  L.  497;   Mr- 

ial,  63  \    H.574;  Gould  Kinney  v.  Mononghela   Co..  2   Harris 

v.  Raymond,  59   \    11.  260;     In  re  Pa-  (Pa.),  65;    Kendall   v.  Post,  8  Oregon, 

$2    Fed.  R.  241;   Doe  v.  141;   Livingston  v.  Mayor,  8  Wend.  85; 

idine,  6   Wall.  (.58.  Heyneman  v.  Blake,  19  Cal.  579;  Ames 

parte    Griffiths,    118     Ind.   83,  v.    Lake   Superior,  etc.,  Co.,  21    Minn. 

Principles  of  Const.  Law.  53;  241. 


THE   SUPREME  COURT.  27 

courts  did  not  exist  at  common  law,  and  as  our  constitution 
does  not  create  the  right,  it  follows  that  no  court  of  exclusively 
appellate  jurisdiction  is  bound  to  try  questions  of  fact  by  a  jury. 
It  has  never  been  done,  and,  as  said  by  a  learned  author,  "  is 
never  likely  to  be  done."  i 

§  31.  Territorial  Jurisdiction — The  territorial  jurisdiction  of  the 
Supreme  Court  is  co-extensive  with  the  State.2  The  constitu- 
tion defines  the  boundaries  of  the  state,  and  under  the  con- 
struction given  it,  the  exclusive  jurisdiction 3  of  the  State  extends 
at  least  to  low  water  mark  on  the  Ohio  river.4  The  countv 
bordering  on  the  river  is,  of  course,  the  seat  of  original  juris- 
diction, and  the  appellate  tribunal  acquires  jurisdiction  by  ap- 
peal from  the  local  courts.  It  is  probably  true  that  the  juris- 
diction of  our  courts  over  the  Ohio  river  is  to  some  extent  con- 
current and  not  exclusive.  If  this  be  true,  then  it  would  seem 
to  follow  that,  where  the  cause  of  action  grows  out  of  an  act 
done  on  a  river  where  the  jurisdiction  is  concurrent,  jurisdiction 
remains  with  the  court  which  first  acquires  it. 

§  32.  Constitutional  Questions — Constitutional  questions  are  for 
the  Supreme  Court  in  every  case  where  there  is  a  right  of  ap- 
peal, no  matter  what  may  be  the  nature  of  the  case  in  which 
they  arise  or  the  class  to  which  the  case  in  which  thev  arise  be- 
longs. The  act  creating  the  Appellate  Court  so  provides,  but 
without  any  such  provision  it  is  evident  that  jurisdiction  is  in 
the  Supreme  Court.0  It  is,  of  course,  easy  to  declare  that 
all  constitutional  questions  are  for  the  Supreme  Court,  but  it  is 

1  2  Works  Pr.,  §  10S7.  Wis.  291;   Withers  v.  Buckley,  20  How. 

2  Const.,  Article  7,  §  4.  84;   Handly  v.  Anthony,  5   Wheat.  374. 

3  Const.,  Article  14.  But,  see  Indiana  v.  Kentucky,  136  U.  S. 

4  Carlisle  v.  State,  32  Ind.  55;   Sher-  479. 

lock  v.  Ailing,  44  Ind.  184;   Dougan  v.  5  Questions  of  such  grave  importance, 

State  (Ind.),  25  N.  E.  R.  171;    Dorsey  affecting  the  organic  law  itself  and  aris- 

v.  State  (Ind.),  25  N.  E.  R.  350;   Welsh  ing   upon    the    enactments  of  the    law 

V.  State  (Ind.),  25  N.  E.  R.8S3;   McFall  making  power,  demand  the  highest  ex- 

v.  Commonwealth,  2   Metcf.  (Ky.)  394.  ercise  of  judicial  power.     It  seems  clear, 

See,   generally,  People  v.  Tibbitts,   19  therefore,  that  their  ultimate   decision 

N.  V.  523;    Parker  v.  Cutler  Milldam  must    be    by  the  highest  court    oi   the 

Co.,  20  Me.  353;    Stoughton  v.  State,  5  commonwealth. 


APPELLATE   PROCEDURE. 

by  no  means  easy  to  say  when  such  questions  are  so  presented 
as  to  require  a  decision.  As  is  well  known,  courts  will  only 
decide  constitutional  questions  when  they  are  in  the  record  and 
are  manifestly  necessary  to  a  final  determination  of  the  case.1 
It  is  also  well  settled  that  a  party  not  affected  by  a  statute  can 
not  present  a  question  as  to  its  validity  and  compel  a  decision. - 

§  33.  How  Constitutional  Questions  must  Appear— It  must  fairly 
appear  that  a  constitutional  question  is  in  the  record,  and  that 
the  party  who  assumes  to  make  the  question  has  a  right  to  do 
but  these  things  need  not  conclusively  or  even  decisively 
appear,  for  if  it  appears,  from  an  inspection  of  the  record,  that 
there  is  reason  for  inferring  or  adjudging  that  the  record  does 
present  a  constitutional  question,  jurisdiction  is  in  the  Supreme 
Court.  If  it  were  held  otherwise,  it  might  deprive  a  party  of 
the  right  to  a  decision  by  the  Supreme  Court,  since  it  would 
leave  the  question  whether  the  validity  of  a  statute  is  involved 
to  the  Appellate  Court,  and  its  decision  would  shut  off  the  right 
of  a  party  to  invoke  the  judgment  of  the  tribunal  to  which  juris- 
diction over  such  questions  is  committed.  Mere  assertion  that 
a  constitutional  question  is  presented  will  not  be  sufficient,  but 
if  it  appears  that  the  question  whether  a  statute  is  or  is  not 
valid  is  involved,  is  a  fairly  debatable  one,  the  case  belongs  to 
the  Supreme  Court.3  Reasonable  ground  for  asserting  that  a 
constitutional  question  is  involved  should  be  deemed  sufficient 
to  establish  the  jurisdiction  of  the  tribunal  invested  with  author- 
itv  over  such  questions,  for  it  can  not  be  justly  asserted  that  the 


1  Hoover  w.Wood,  g  Ind.  286;  Ireland  People    v.    Rensselaer,    etc.,    Co.,    15 

stine,  etc.,  Turnpike  Co.,  [9  ( >hio  Wend.  1  13.  S.  C.  30  Am.  Dec.  33;  Sin- 

3  nith  v.  Speed,  50  Ala.  276;  clair    v.  Jackson,  S  Cow.  543;   Antoni 

i;    Mich.    76;     Ex  v.   Wright,  -•-:   Gratt.  833,   857;    hi    re 

parte  Randolphs  Brock,  117;    Mobile,  Wellington,  16  Pick.  87,  96;    Jom 

Black,  ^8  Ala.  540;  Williamson  v.  Carl- 

-  Wagner    v.  Town    ><\'  Garrett,   118  ton,  51  Me.  149. 

liul.    ii)-.     Commonwealth    v.  Wright,  3  State    :■.   Elam,  21    Mo.  App.    290; 

79  K-.  -'-•.  S.  C.  (j    Am.   R.  203;   Mar-  Kamerick  v.  Castleman,  29  Mo.  App. 

A          hi.  in   Bush.     Kv.     681;  658;   /V.v/',  §  49. 
Smith   ■  .    McC  arthy,    56  Pa.    St.    $yy, 


THE  SUPREME  COURT.  29 

Appellate  Court  can  foreclose  the  right  of  the  parties  by  decid- 
ing that  no  such  question  is  involved  in  the  case.1 

§  34.  Statutory  Jurisdiction — The  subject  of  the  statutory  juris- 
diction of  the  Supreme  Court  may  be  introduced  by  repeating 
what  has  been  in  substance  already  said,  that  the  whole  appel- 
late jurisdiction,  however  created,  is  in  that  tribunal,  save  onlv 
as  parts  or  parcels  of  the  jurisdiction  have  been  taken  from  it 
and  lodged  elsewhere.  The  act  creating  the  Appellate  Court 
does  take  some  of  the  jurisdiction  from  the  Supreme  Court,  and 
to  that  act  we  must  look  to  ascertain  what  jurisdiction  has  been 
taken  from  the  Supreme  Court.2  In  considering,  as  we  shall 
presently  do,  the  subject  of  the  jurisdiction  of  the  Appellate 
Court  we  shall  show  what  classes  of  cases  go  to  that  tribunal 
and,  in  doing  that,  shall  incidentally  show  what  cases  remain 
in  the  Supreme  Court. 

§  35.  Classes  of  Cases  Taken  from  the  Jurisdiction  of  the  Supreme 
Court — The  cases  which  fall  within  the  jurisdiction  of  the  Ap- 
pellate Court  may,  in  a  very  general  way,3  be  said  to  be  these : 
All  prosecutions  for  misdemeanors,  actions  which  originate  be- 
fore a  justice  of  the  peace,  all  actions  for  the  recovery  of  money 
only  where  the  amount  in  controversy  does  not  exceed  one 
thousand  dollars,  all  actions  for  the  recovery  of  specific  per- 

1  Ex  parte    Sweeney,  126    Ind.  583;  can  not  be  determined    by  an  inferior 

Chaplin    v.    Commissioners    of   High-  tribunal.     The  effect  of  the  order  of  the 

ways,  126  111.  264,  274;    McCormick  v.  Supreme  Court  directing  a  transfer  of 

St.  Louis,  etc.,   Co.,  20  Mo.  App.  65;  the  case  has  been  held  to  conclusively 

State  v.  Kaub,  15  Mo.  App.  433;  Clark-  adjudge  that  no  constitutional  questions 

son    v.  Guernsey,   etc.,    Co.,    22     Mo.  are  presented.     State  v.  Farrell,  23  Mo. 

App.  109;  Benson  v.  Christian  (Ind.),  App.  176;   State  v.  Kaub,  23  Mo.  App. 

Nov.    19,    1891;    Benson    v.    Christian  177. 

(Ind.  App.  Ct.),  Oct.  30,  1891.  This  2  Act  approved  February  28,  1891, 
is  in  harmony  with  the  general  doctrine  Acts  of  1891^.39.  See,  Post,  Chap- 
that  the  ultimate  decision  of  the  ques-  ter  IV,  Ex  parte  Sweeney,  126  Ind.  5S3. 
tion,  whether  a  case  is  or  is  not  appeal-  3  It  is  only  necessary  to  speak  of  the 
able,  must  be  made  by  the  tribunal  cases  within  the  jurisdiction  of  the  Ap- 
which  the  law  invests  with  power  to  pellate  Court  in  a  very  general  way  as 
finally  decide  the  case.  Whether  an  the  subject  is  treated  at  length  in  Chap- 
appeal  lies  is  generally  a  question  for  ter  IV.  See,  also,  Ex  parte  Sweeney, 
the  higher  court,  since  it  must  deter-  126  Ind.  5S3. 
mine  its  own  jurisdiction ;  that  question 


30  APPELLATE   PROCEDURE. 

><>nal  property,  all  actions  for  the  recovery  of  demised  premises 
where  the  relation  of  landlord  and  tenant  exists,  and  appeals  from 
judgments  or  orders  allowing  or  disallowing  claims  against  dece- 
dents' estates.  These  cases,  with  all  their  incidents,  are  within 
the  jurisdiction  of  the  Appellate  Court  saving  and  excepting 
always  cases  where  the  validity  of  a  statute,  Federal  or  State, 
is  involved,  and  cases  where  some  other  controlling  element 
carries  it  to  the  Supreme  Court.1  Upon  a  like  principle  it  must 
be  held  that  all  other  cases  wherein  an  appeal  lies,  with  all 
their  incidents,  are  within  the  jurisdiction  of  the  old  tribunal. 
The  decisions  that  have  been  announced  give  full  recognition 
to  the  doctrine  that  the  incidents  go  where  the  principal  goes.2 

§  36.  Incidents  of  a  Class  go  with  it — The  rule  that  the  incidents 
of  a  class  of  cases  follow  the  class  is  founded  on  principle  and  is 
required  to  prevent  interminable  confusion.  The  foundation 
doctrine  is  that  the  grant  of  a  principal  right  or  power  carries  all 
the  necessary  incidents,  and  this  doctrine  runs  through  all  juris- 
prudence.3 If  any  other  rule  than  that  stated  be  adopted  confu- 
sion that  can  neither  be  removed  nor  cleared  away  will  result, 
for  without  such  a  rule  cases  would  necessarily  be  dissected  into 
parts  and  distributed  piecemeal.  The  only  mode  in  which  this 
evil  can  be  prevented  is  by  a  strict  adherence  to  the  rule  that 
all  the  incidents  go  with  the  class.  The  only  inconvenience  or 
confusion  that  can  arise  from  an  adherence  to  this  rule  is  that 
growing  out  of  the  difficulty  of  determining  what  is  the  principal 
and  what  the  incident,  but  this  difficulty  is  infinitely  less  serious 
than  the  perplexing  difficulties  which  would  certainly  result  from 
an  attempt  to  sever  a  class  of  cases  into  fragmentary  parts. 

37.    Equity  Cases — The  rule  that  the  incidents  go  with  the 

1  Duckworth  v.  Mosier(  Nov.  5, 1S91).         3  Warren  :\  Henly,  31  la.  31 :  McNam- 

Post,    §  40,  and    authorities    col-  ara  v.  Estes,  22  la.  246;   New  Haven  v. 

lected  in  note.  Whitney,   36    Conn.  373;     O'Learv   v. 

'Baker    v.    Groves,     126     1ml.    593;  Sloo,7  La.  Ann.  25;  Smith  v.  Newbern, 

Evansvjlle,  etc.,  Co.  v.  Swift,  128  Ind.  70  N.  C.  14,  S.  C.  16  Am.  R.766;  Cook 

Parker  et  al.v.   Indianapolis  Nat.  County  v.  McCrea,  93  111.  236;    Smith 

Hank.    126    Ind.   595;     Harris    t'.  Howe  f.  City   of  Madison,  7   Ind.  86;     Cum- 

,  27   N.  E.  R.   561;     Courtney  v.  ings  v.  Mayor,  11  Paige,  596. 
Courtney     <  )ct.    10,  '91 ). 


THE  SUPREME  COURT.  ;;i 

principal  casts  all  cases  where  purely  equity  jurisdiction  is  in- 
voked to  the  Supreme  Court,1  but  it  by  no  means  carries  there 
all  cases  in  which  equitable  principles  are  applied.2  Even  jus- 
tices of  the  peace  should  be  guided  by  equitable  principles  (and 
theoretically,  at  least,  are  so  guided),  and  yet  they  can  not 
exercise  equity  jurisdiction.3  It  is,  therefore,  not  merely  where 
equitable  principles  are  applied  that  cases  fall  to  the  Supreme 
Court,  but  it  is  where  equity  jurisdiction  is  invoked  or  equitable 
relief  is  awarded.  The  character  of  the  jurisdiction,  and  not 
the  rules  of  decision,  must  control.  All  cases  where  strictly 
equity  jurisdiction  is  called  into  exercise  and  equitable  relief 
must  be  awarded,  go  to  the  Supreme  Court,  since  there  the 
original  jurisdiction  resided  and  no  cases  of  purely  and  exclu- 
sively equitable  cognizance  are  taken  from  that  tribunal.  Within 
this  general  rule  fall  suits  for  injunction,  suits  to  enforce  the 
specific  performance  of  contracts,  suits  for  rescission,  suits  to 
secure  the  construction  of  wills,4  suits  to  foreclose  legal  and 
equitable  liens  on  real  property,  and  many  other  cases  of  purely 
equitable  cognizance.  In  short,  where  purely  equity  jurisdic- 
tion is  exercised  or  invoked  the  case  does  not  leave  its  original 
place  in  appellate  jurisdiction. 

§  38.  What  are  considered  Equity  Cases — A  test  by  which  to 
determine  the  question  of  jurisdiction  is  supplied  by  the  maxim 
that  "Equity  acts  specifically,  and  not  by  way  of  compensa- 
tion." Where  a  specific  decree  is  required  then,  as  a  general 
rule,  jurisdiction  is  in  the  Supreme  Court.  It  may  be  that  a 
money  judgment  should  be  embodied  in  a  decree  and  still  the 
jurisdiction  remain  in  that  court,  inasmuch  as  where  specific 
relief  is  requisite  there  is  in  such  cases  something  more  than 
recovery  "of  money  only."     Wherever  a  specific    decree    is 

1  Ex  parte  Sweeney,  126  Ind.  583.  equity  power,  but  equitable  principles 

2  Baker  v.  Groves,  126  Irid.  593.  may  be  administered  by  any  court. 

3  Albrecht  v.  C.  C.  Foster  Lumber  *  Faught  v.  Faught  et  a/.,  9S  Ind. 470; 
Co..  26  N.  E.  R.  157,  and  cases  cited.  Stewart  v.  Stewart,  31  Ala.  207;  Car- 
There  is  a  palpable  difference  between  michaels.  Browder,  3  How.  (Miss.  )2  52  . 
equitable  principles  and  equity  jurisdic-  Rosenbergs.  Frank,  5S  Cal.  3S7;  People 
tion.     The  equity  jurisdiction  can  only  v.  Davidson,  30  Cal.  379. 

be  exercised  bv  a  court  invested  with 


32  APPELLATE   PROCEDURE. 

ssary  an  additional  element  is  annexed,  and  inseparably 
annexed,  to  a  money  recovery,  although  a  money  recovery  may 
be  also  adjudged  as  part  of  the  decree  which  awards  the  spe- 
cific relief. 

§  39.  Foreclosure  of  Liens  on  Property — Decisions  of  our  own 
court  fully  illustrate  and  enforce  the  rule  that  the  fact  that  a 
money  recovery  is  embodied  in  a  decree  does  not  control  the 
question  of  jurisdiction.  The  cases  referred  to  are  those  which 
declare  that  a  suit  to  foreclose  a  mortgage  lien  is  one  of  equity 
cognizance,  although  there  may  also  be  a  money  recovery  upon 
a  note  secured  by  the  mortgage.1  The  underlying  principle  is 
that  the  equitable  element  is  the  controlling  one,  and,  as  such, 
gives  character  to  the  case.2  It  is  evident  that  the  rule  asserted 
in  the  cases  referred  to  is  the  correct  one  when  it  is  brought  to 
mind  how  stubbornly  the  early  English  chancellors  fought  to 
establish  the  authority  of  equity  in  foreclosure  suits,  and  how 
tirmlv  the  maxim  quoted  is  rooted  in  our  jurisprudence.  To 
sanction  the  division  Which  must  necessarily  be  made  if  it  be 
granted  that  where  there  is  a  money  recovery  the  case  is  not  of 
equitv  jurisdiction,  although  there  is  a  specific  decree,  would 
lead  to  disastrous  results,  for,  in  almost  ever)-  case  of  the  fore- 
closure of  a  lien  a  sum  is  decreed  to  be  due,  and,  although  the 
sum  adjudged  to  be  due  is  not  always  woven  into  a  personal 
judgment  yet  this  is  often  done.3 

1  Carmichael  v.  Adams,  91   Ind.  526;  211;  Souder's  Appeal,  57  Pa.  St.  498; 

Brighton     :•.    White,     12S     [nd.    320;  McGown  v.  Remington,  12   Pa.  St.  56; 

Rogers  :'.  Union  Central  Ins.  Co.,  in  Henderson    v.    Dickey,    50    Mo.    161; 

[43;   Kedy  v.   Kramer,   Ind.   App.  Phelan  v.  Boy  Ian,  25  Wis.  679,  1  Pom. 

Ct.,  28  N.   E.   Rep.  ii2z.    The  doctrine  Eq.  Jur.,  Sec.  231;   Kimble  v.  Seal,  92 

applies  tn  .1   suit    to  foreclose  a  chattel  Ind.  276. 

mortgage.    Brown  v.  Russell  &  Co.,  105  8  The  principle  that  jurisdiction  for 

Ind.  |'i.     This  principle  applies  to  suits  one  purpose  is  jurisdiction  for  all  pur- 

Ide   fraudulent   conveyances,  poses  would  be  violated  by  dissecting  a 

Fields  ".  Holzman,  93  Ind.  205;   Israel  case  into  parts   and  giving   one  court 

son,  93  Ind.  543.      See,  generally,  jurisdiction   over  one  element  and   an- 

Lake  Erie,  etc.,  Co.  v.  Griffin,  92  Ind.  other  court  jurisdiction   over  another. 

,7     I  ake  V.  Lake,  99  [nd.  339.  There  must  be  one  dominating  element, 

'Armstrong    v.   Gilchrist,    2    Johns  which,  "  like  Aaron's  serpent,  rules  all 

.    \z\\     Hepburn    v.    Dunlop,    1  the  rest." 

Wheat,  i-'j:  Oelrichs  v.  Spain,  [5  Wal. 


THE   SUPREME  COURT.  33 

§  40.  Title  to  Land,  Cases  Involving — All  cases  concerning  the 
title  to  real  estate  except  cases  arising  between  landlord  and 
tenant  are  within  the  jurisdiction  of  the  Supreme  Court.  This 
is  true  whether  the  case  is  one  of  legal  or  equitable  cognizance, 
for  no  authority  over  questions  affecting  the  title  to  real  property 
is  conferred  upon  the  Appellate  Court,  and  the  jurisdiction  re- 
mains where  the  great  body  of  appellate  jurisdiction  is  vested. 
It  is,  indeed,  possible  that  in  cases  where  it  is  the  right  of 
parties  to  put  the  title  in  issue,  and  they  do  appropriately  so  put 
it  in  issue  that  it  must  be  decided,  the  jurisdiction  is  in  the  Su- 
preme Court,  although  the  action  was  originally  between  land- 
lord and  tenant.  This  conclusion  seems  warranted  by  the 
words  of  the  act  creating  the  Appellate  Court,  for  they  confine 
the  jurisdiction  of  that  court  to  cases  where  the  relation  of  land- 
lord and  tenant  exists,  and  where  the  relief  sought  is  the  pos- 
session of  the  "leased  premises."1  If  a  title  destroying  that 
relation  is  so  asserted  as  to  require  an  adjudication  it  is  difficult 
to  conceive  why  the  case  is  not  within  the  jurisdiction  of  the 
tribunal  invested  with  authority  over  all  questions  of  title.  It 
can,  however,  seldom  happen  that  a  question  of  title  can  be  put 
in  issue  since  the  familiar  rule  that  a  tenant  can  not  deny  the 
title  of  his  landlord  is  of  such  wide  sweep,  that  in  the  great 
majority  of  cases  where  the  relation  of  landlord  and  tenant  ex- 

1  Duckworths.  Mosier  (Nov. 4,  1S91).  under   an  appellate  system   similar  in 

Here,  again,  the  principle   that  what  is  many  respects  to  ours.     Snell  v.  Snell, 

not    taken    from    the    Supreme    Court  123   111.  403;    Frank  v.  King,    121    111. 

there   remains,    is   of   controlling    im-  250;  Brace  v.  Black,  125  111.  33;    Rice 

portance.     What  is  not  excluded  from  v.  Hall,  21  111.  App.  Ct.  28S;    Lehman 

the   jurisdiction   of  that  court  is  there  v.    Rothbarth,    in   111.  194;     Commis- 

still.     The  form  of  the  action  or  suit  in  sioners  v.  Kelsey,  120  111.  4S3;   Kilgour 

which  the  title  to  real  estate  is  involved  -'.Drain  Commissioners,   111   111.  34S; 

is    not   of  controlling  importance.     If  Moyer  v.  Swygart,  21  111.  App.  Ct. 497. 

title  to  land  is  rightfully  put  in  issue  so  Gage  v.  Scales,  100  111.  218;    Chicago, 

that  the  final  decision  must  take  from  etc.,  Co.  v.  Watson,  105  111.  217.     The 

one  party  the  land  and  give  it  to  an-  cases  to  which  we  have  referred  present 

other,  the  ultimate  appellate  jurisdiction  illustrations  of  many  forms    in  which 

is  in  the  Supreme  Court.     This  is  the  the  question  has  arisen,  and  they  unite 

effect    of  the    decisions  in  Duckworth  in  declaring  the  rule  substantially  as  we 

v.  Mosier  (Nov.  4,  1S91),  and   Evans-  have    stated    it.     See,  post,   §§    51,   52, 

ville,  etc.,  Co.  v.  Swift,   128   Ind.  341.  Chapter  IV. 
The  doctrine  is  declared  and  enforced 

3 


34  APPELLATE  PROCEDURE. 

ists,  no  question  of  title  can  be  made.  But  there  ma)-,  we  sup- 
pose,  be  rare  cases  where,  although  the  action  was  originally 
commenced  by  one  claiming  as  landlord,  the  question  of  title 
can  be  put  in  issue  as  fully  and  directly  as  in  any  other  class 
of  cases,  as,  for  instance,  where  it  is  clearly  and  properly  shown 
that  the  landlord's  title  has  been  lost  since  the  execution  of  the 
lease,  and  the  tenant  holds  under  another  lessor.1  Where  the 
title  can  be  put  in  issue  and  is  actually  and  appropriately  put  in 
issue,  it  would  seem  to  be  the  dominating  question,  completely 
overshadowing  the  question  of  the  right  of  the  lessor,  as  against 
the  lessee,  to  the  possession  of  the  demised  premises.2 

§41.  Prosecutions  for  Felony — Habeas  Corpus — It  is  hardly  nec- 
essary to  say  that  all  prosecutions  for  misdemeanors,  no  matter 
where  they  originate,  are  within  the  jurisdiction  of  the  Appel- 
late Court,  except,  of  course,  where  the  validity  of  a  statute  is 
involved,  and  hence  they  are  excluded  from  the  jurisdiction  of 
the  older  tribunal.  The  vesting  of  the  new  court  with  juris- 
diction in  cases  of  misdemeanor  leaves  all  prosecutions  for 
felonv  within  the  jurisdiction  of  the  Supreme  Court.  It  would 
seem  that  all  habeas  corpus  proceedings,  although  the  arrest 
may  grow  out  of  a  prosecution  for  a  misdemeanor,  must  be 
within  the  jurisdiction  of  that  court,  since  jurisdiction  of  such 
cases  is  not  taken  from  it. 

1  Tobinv.  Young,  124  Ind.  507;   Sims  Bridwell,  15    Ind.    211;    O'Connell    v. 

Hv.    Cooper,    106   Ind.   S7;    Willison   v.  Gillespie,  17  Ind.  459;  Burgett  v.  Both- 

Watkins,  3  Pet.  43;  Jackson  v.  Wheeler,  well,  86  Ind.  149.     Some  of  the  expres- 

6  Johns.  272.  sions  contained  in  the  cases  cited  seem 

-  Kinney  v.  Doe,  S  Blackf.  350;  Kel-  to  conflict  with  the  doctrine  of  the  well 

luiu  v.  Berkshire,  etc.,  Co.,  101  Ind.  455;  considered  ease  of  Judy  V.  Citizen,  101 

Delaney  v.  Fox,  2  C.  B.  N.  S.  76S;   El-  Ind.  18,  and  so  far  as  they  do  so  they 

liotl  v.  Smith,  23  Pa.  St.  131;   Weich-  are  probably  erroneous.     The  doctrine 

selbaum  v.  Curlett,  20  Kan.  709;  Sharpe  is  that  title  is  not  in  issue,  for  even  an 

-     Kelley,   5    Denio,    431;     Whiting   v.  owner  can  not  resort  to  force.     Archey 

Edmunds,   94     N.    Y.   309;     Fuller    v.  v.  Knight,  61   Ind.  311,  313;    People  v. 

Sweet,  30   Mich.  237.     Where  the  title  King,  2  Caines,  98;  People  v.  Leonard, 

to    land    is    properly    put    in    issue    the  11  Johns.  504;   Schroeder's  McDonald's 

justice  of  the  .                •  es  to  have  au-  Treatise,    30,  4S5.     To  oust  the   juris- 

thority  to  do  anything  more  than  certify  diction    of  the   justice  it   must    appear 

the  case  to  the  circuit  court.     Kiphart  that  the  title  is  actually  in  issue.     Mel- 

Brennemen,  25    Ind.  152;    Short  v.  loh  v.  DeMott,  79  Ind.  502. 


THE   SUPREME   COURT.  35 

§  42.    Actions  to  Recover  Statutory  Penalties— Where  lies   the 

jurisdiction  in  quasi  criminal  cases,  that  is,  in  actions  to  re- 
cover statutory  penalties,  is  a  question  of  some  difficulty.  We 
venture,  however,  to  suggest  that  where  the  amount  in  contro- 
versy does  not  exceed  one  thousand  dollars,  the  jurisdiction  is 
in  the  Appellate  Court.  The  reason  which  leads  us  to  this  con- 
clusion is  that  the  ultimate  relief  obtainable  is  the  recovery  of 
money  only,  and  the  remedy  is  a  civil  action.1  Where,  how- 
ever, the  validity  of  a  statute  is  involved,  the  jurisdiction  is  in 
the  Supreme  Court. 

§  43.  Municipal  Ordinances — There  is  an  anomalous  class  of 
cases  which  presents  a  special  difficulty.  The  class  to  which 
we  refer  is  that  of  prosecutions  to  recover  penalties  for  the  vio- 
lation of  municipal  ordinances.  It  seems,  however,  that  where 
the  validity  of  the  ordinance  is  in  issue  the  jurisdiction  remains 
in  the  Supreme  Court,  but  where  the  simple  question  is  whether 
the  facts  show  a  violation  of  the  ordinance  the  jurisdiction  is  in 
the  Appellate  Court.2  The  enactment  of  a  municipal  ordinance 
is  the  exercise  of  a  local  legislative  power  and  a  municipal 
ordinance  is,  in  effect,  a  local  statute,3  so  that  in  cases  where  its 
validity  is  challenged  the  question  is  one  of  power,4  hence  it  is 
reasonable  to  conclude  that  such  a  case,  that  is,  a  case  where 
the  question  is  purely  one  of  power,  is  for  the  Supreme  Court. 
Questions  affecting  the  mere  form  observed  or  disregarded  in 
enacting  the  ordinance,  as,  for  instance,  whether  it  was  regu- 
larly recorded,  will  not  make  the  case  one  for  the  Supreme 
Court.5     Where  no  question  of  power  is  involved,  the  case  is  for 

1  Durham  v.  State,  117  Ind.477;  The     State  v.  Lee,  29  Minn.  445,  S.C.  4  C rim. 
Western  Union  Tel.  Co.  v.  Scircle,  103     Law  Mag.  79,  Si. 

Ind.  227;  United  States  v.  Colt,  Peters  *  If  any  other  rule  be  adopted,  it  will 

C.  C.  R.  145;  Washington  v.  Eaton,  4  defeat  the   provision  of  the  Appellate 

Cranch  C.  C.  352.  Court  act,  which  excludes  questions  of 

2  City   of    Hammond    v.   The    New  the  validity  of  a  statute  from  the  juris- 
York,  etc.,  R   R.  Co.,  126  Ind.  597.  diction  of  the  newly  created  tribui 

3  Town  of  Elwood  v.  The  Citizens',  and  it  would,  also,  contravene  the  pr::i- 
etc,  Co.,  114  Ind.  332;    The  Pennsyl-  ciple  that  jurisdiction  not  taken   from 
vania  Co.  v.  Stegemeier,  11S  Ind.  305;  the  older  tribunal  still  remains. 
Blanchard    v.  Bissell,   11   Ohio    St.  96;  5  City  of   Hammond  v.   New  York, 

etc.,  Co.,  126  Ind.  597. 


36  APPELLATE   PROCEDURE. 

the  Appellate  Court  inasmuch  as  the  action  is,  in  its  essential 
features,  a  civil  action  to  enforce  a  statutory  penalty,1  and  the 
question  whether  the  ordinance  was,  or  was  not,  regularly 
passed  is  merely  an  incidental  one,  as  is  the  question  whether 
the  evidence  shows  a  violation  of  the  ordinance.  Under  the 
rule  heretofore  stated,  these  incidental  questions  travel  with  the 
principal  ones  ;  where  the  latter  go,  they  go. 

§  44.   Where  the  Principal  Appellate  Jurisdiction  is  Vested — It  is 

evident,  without  going  further  into  details,  that  the  great  body 
of  appellate  jurisdiction  still  remains  in  the  Supreme  Court. 
Among  the  classes  of  cases  not  heretofore  enumerated  may  be 
named,  information  in  the  nature  of  quo  zvarranto,  writs  of  pro- 
hibition, contest  of  elections,  contests  of  wills,  proceedings  in 
partition,  suits  to  quiet  title,  actions  for  mandate,  and  many 
other  suits  and  actions.  It  may,  indeed,  be  said,  although  at  the 
expense  of  repetition,  that  all  classes  of  actions  and  suits  not 
within  the  jurisdiction  of  the  Appellate  Court  are  within  the 
jurisdiction  of  the  Supreme  Court,  provided,  of  course,  that  the 
action  or  suit  is  one  wherein  an  appeal  will  lie. 

15.  Inherent  Powers — It  is  to  be  understood  that  the  juris- 
diction of  the  Supreme  Court,  as  well  as  that  of  the  Appellate 
Court,  is  essentially  appellate  and  not  original.2  Under  the 
general  power  which  all  courts  of  their  rank  possess  they  may 
issue  writs  of  mandate  or  of  injunction  in  aid  of  their  appellate 
jurisdiction.  They  may  determine  in  the  first  instance,  their 
own  powers  and  duties,  for  it  is  clear  that  no  inferior  tribunal 
can  determine  for  them  what  their  powers  and  duties  are.3  They 
may  protect  their  own  records  and  prohibit  interference  with 
their  legitimate  powers  and  duties.4     Where  the  powers  and 


1  Bogart   v.  City  of  New  Albany,   i  ville    v.  Gagle,    73  Ind.  117;     Harden- 
ing. 38;    City  of  Indianapolis  V.  Fair-  brook  v.  Town  of  Ligonier,  95  Ind.  70. 
child,  1  [nd.  315;   Levy  v.  State,  6  Ind.  2  Kesler  v.  Kesler,  39  Ind.  153. 
281;     City   of  Gosben   v.   Croxton,  34  3  State  v.  Noble,  118  Ind.  350. 
Ind.    239;     City    of    Greensburgh    v.  *  Ex  parte  Griffith,  11S  Ind.  83. 
Corwin,  5S  Ind.  518;    Town  of  Brook- 


THE  SUPREME  COURT. 

duties  are  prescribed  by  the  constitution  the  legislature  is  power- 
less to  add  to  or  detract  from  them.1  In  awarding  writs  of  man- 
date, or  of  prohibition,  or  of  injunction,  appellate  courts  do  not 
exercise  original  jurisdiction,  but  they  exercise  authority  vested 
in  them  as  courts  and  because  the  authority  is  essential  to  their 
existence  or  to  the  exercise  of  functions  as  courts  of  justice. 

§  46.  Opinions — Constitutional  Requirements — The  constitution 
requires  that  the  Supreme  Court  shall  "  give  a  statement  in 
writing  of  each  question  arising  in  the  record  of  such  case  and 
the  decision  of  the  court  thereon."2  This  provision  has  received 
considerable  attention  and  given  rise  to  much  diversity  of  opin- 
ion.3 In  one  of  the  earlier  cases  it  was  intimated  that  it  was 
merely  directory,4  but  this  is  not  consistent  with  the  settled  rule 
governing  the  subject  of  constitutional  construction,  inasmuch 
as  it  completely  nullifies  the  force  of  clear  and  explicit  words 
where  there  is  neither  contradiction  nor  confusion.  But  the 
construction  placed  upon  the  provision  by  the  later  cases  does 
not  follow  the  earlier  case  in  the  particular  indicated.  The 
provision  does  not,  howrever,  require  the  court  to  decide  every 
question  discussed  by  counsel,  nor,  indeed,  every  question  that 
may  be  found  in  the  record  since  the  record  may  contain  ques- 
tions so  unimportant  as  to  be  entirely  destitute  of  influence.  It 
requires  a  decision  upon  every  question  essential  to  a  final  dis- 
position of  the  case  before  the  court,  and  upon  no  others.  It 
requires,  also,  a  statement  in  writing  upon  each  question  de- 
cided, but  it  does  not  require  a  statement  of  a  question  not  de- 
cided. A  decision  of  questions  essential  to  a  complete  disposi- 
tion of  the  particular  case  before  the  court  is  all  that  is  required, 
and  is,  indeed,  all  that  can  with  propriety  be  made,  since  to 


1  Vaughn  v.  Harp,  49  Ark.  160;  In  re  Hand  v.  Taylor,  4  Ind.  409;  Rice  v. 
Janitor,  35  Wis.  410;  Commissioners  v.  State,  7  Ind.  332;  Ferguson  v.  Hani- 
Hall,  7  Watts.  290.  son,  7  Ind.  610;  Clark  v.  Trovinger,  8 

*  Article  7,  §  5.  Ind.  334;  Boggs  v.  State,  S  Ind.  463. 

3  Henry  v.  State  Bank,  3  Ind.  216;  4  Willets  v.  Ridgway,  9  Ind.  367. 


38 


APPELLATE   PROCEDURE, 


ile  other  questions  would  often  be  to  volunteer  a  judgment 
without  excuse.1 


1  Lake  Shore,  etc.,  R.  Co.  v.  Cincin- 
nati, etc.,  Co.,  i  in  Ind.  57S,  590.  In 
Trajser  v.  Trustees  of  Indiana  Asbury 
University,  39  Ind.  556,  it  was  said: 
"Three  things  must  concur  before  a 
question,  within  the  meaning  of  the 
•itution, arises  in  the  record:  First, 
the  question  must  be  fully  and  clearly 
1  in  the  transcript;  second,  there 
must  be  an  assignment  of  error  cover- 
ing the  point:  third,  it  must  be  a  ques- 
tion, the  decision  of  which  is  necessary 
to  the  final  determination  of  the  cause." 


It  i-  proper  to  say  of  the  case  from  which 
we  have  quoted  that  in  one  particular  it 
asserts  an  erroneous  rule  and  that  is  in 
asserting  that  the  court  is  bound  to  de- 
cide a  point  not  made  in  the  brief  of 
counsel.  The  court  is  not  bound  to 
hunt  for  points,  nor  would  it  be  fair  to 
adverse  counsel  to  do  so,  for  points 
ought  to  be  made  so  that  opposing 
counsel  may  have  an  opportunity  to 
meet  them.  It  is  fair  to  assume  that 
counsel  will  make  and  argue  all  the 
material  points  that  arise  in  the  case. 


CHAPTER  IV. 


THE   APPELLATE  COURT. 


^47.  Jurisdictional    clause    of  the    act     §61. 
creating  the  Appellate  Court. 

48.  Entire  case  goes  to  one  court.  62. 

49.  Appellate  Court  has  no  jurisdic- 

tion of  constitutional  questions.        63. 

50.  No  definite  system  of  classification 

adopted.  64. 

51.  Actions  originating  before  a  jus- 

tice of  the  peace.  65. 

52.  Actions  involving  title  to  real  es- 

tate. 66. 

53.  Amount    in    controversy    before 

justice  of  the  peace  determines       67. 
jurisdiction. 

54.  Amount  in    controversy   in    trial        68. 

court — General  rule. 

55.  Amount — Exceptional  cases.  69. 

56.  Jurisdiction    as    dependent    upon        70. 

amount. 

57.  Money  recoveries  only.  71. 

58.  Effect  of  the  limiting  words  of  the        72. 

statute.  73. 

59.  Determination  of  the  amount  in        74. 

controversy. 

60.  Effect    of  judgment    in    the    trial 

court  upon  the  question  of  the 
amount  in  controversy. 

§  47.   Jurisdictional  clause  of  the  act  creating  the  Appellate  Court 

— The  act  creating  the  Appellate  Court  distributes  to  that  court 
part  of  the  appellate  jurisdiction  of  the  State  and  designates  the 
classes  of  cases  over  which  it  is  given  authority.1  The  express 
designation  and  enumeration  of  the  classes  over  which  its  juris- 
diction is  extended  leaves  all  others  within  the  jurisdiction  of 
the  Supreme  Court.     In  addition  to  the  reasons  given  in  the 

1  Act  of  February  28,  1S91.  Acts  of  1891,  p.  39. 

(39) 


Interest  and  costs  which  acc.ue 
subsequent  to  the  appeal. 

Remittitur — Effect  on  question  of 
jurisdiction. 

Counter-claim  as  affecting  juris- 
diction. 

Counter-claim — Change  of  the 
character  of  case  by. 

Actions  for  the  recovery  of  per- 
sonal property. 

Value  of  property  in  controversy 
not  material. 

Exceptional  cases  involving  title 
to  personal  property. 

Actions  between  landlord  and 
tenant. 

Rule  where  title  is  put  in  issue. 

Decedents'  estates — Claims 
against. 

Rules  of  practice. 

Supreme  Court  decisions  control. 

Transfer  of  cases. 

Disqualification  of  one  judge — 
Jurisdiction  not  ousted. 


40  APPELLATE   PROCEDURE. 

preceding  chapter  for  the  conclusion,  that  the  jurisdiction  not 
distributed  to  the  new  tribunal  remains  in  the  old,  may  be  as- 
signed  this  reason  :  the  express  mention  of  one  thing  implies 
the  exclusion  of  others.  This  familiar  rule  applies  to  constitu- 
tions,1 to  statutes  and  to  contracts,  and  hence  must  apply  to  the 
'  act  creating  the  Appellate  Court. 

§  48.  Entire  case  goes  to  one  Court — The  principle,  to  which 
we  have  often  referred,-  forbidding  the  dissection  of  a  case  into 
parts,  requires  that  a  case  should  go  bodily  into  one  or  the 
other  of  the  appellate  tribunals  of  the  State.3  Plainly  enough 
all  the  incidents  go  where  the  issue  which  gives  character  to 
the  case  indicates  that  the  case  belongs,  so  that  if  the  main 
features  of  a  case  impress  upon  it  a  character  such  as  makes  it 
a  member  of  one  of  the  classes  over  which  the  Appellate  Court 
is  given  authority  the  incidents  annexed  do  not  affect  the  ques- 
tion of  jurisdiction.  The  question  as  to  where  jurisdiction  lies, 
is.  it  is  safe  to  say,  to  be  solved  by  ascertaining  what  element 
or  factor  so  predominates  as  to  fix  the  nature  of  the  case.  In 
enumerating  and  discussing,  as  we  shall  presently  do,  the 
classes  of  cases  which  go  to  the  Appellate  Court  we  desire  to 
be  understood  as  meaning  that  the  classes  named  carry  with 
them  all  their  usual  and  necessary  incidents. 

§  49.  Appellate  Court  has  no  Jurisdiction  of  Constitutional  Ques- 
tions— It  is  true  that  the  Appellate  Court  can  not  entertain  ju- 
risdiction of  constitutional  questions,  but  it  may  so  far  assume 
control  of  a  case  presenting  such  questions  as  to  certify  it  to  the 
Supreme  Court.4     An  error  in  selecting  the  appellate  tribunal 

1  ///  n  Courts  of  Lancaster,  4  Pa.  L.  one  of  the  parties — a  county — the  case 

Jr.  Rep. 315;  Kingf.  Hopkins,  57  N.  II.  could  not  be  divided  but  must  be  cer- 

334;  Turner  v.  Althaus,  6  Neb.  54.  tified  to  the  Supreme  Court. 

3  Wi-   have    considered    the   doctrine         *  A >ite,  §§  32,33;   State  v.  Armstrong, 

thai  the  incidents  go  with  the  principal  35  Mo.  App.49.    See,  generally,  Arnold 

in  another  place.     Ante,  §§  36,  40.  v.   Hawkins,   27   Mo.   App.   476.     The 

5  This  general  principle  is  illustrated  Appellate  Court  can  not  entertain  ju- 

hv    the   ease  of  Freeman  v.  St.  Louis  risdiction,   although   the   constitutional 

Quarry  Co.,  30  Mo.  App.  362.     It  was  question   involved   may    be    settled    by 

there    held    that    where    the    Appellate  decisions  of  the  higher  court.     State  v. 

Court  eould  not   take  jurisdiction   over  Kansas  City  Court  (Mo.),  16  S.  W.  R. 


THE   APPELLATE  COURT.  41 

is  prevented  from  working  disastrous  results  bv  the  provisions 
of  the  act  authorizing  the  transmission  of  cases  from  one  appel- 
late tribunal  to  the  other,  but,  nevertheless,  a  lawyer  who  takes 
pride  in  his  work  will  be  careful  to  make  the  proper  choice. 
As  the  path  is  yet  untrodden,  and  as  there  is  some  room  for 
diversity  of  opinion — for  the  statutory  provisions  are  not  free 
from  ambiguity — it  is  probable  that  it  will  require  time  and  ex- 
perience to  construct  a  uniform  system  of  procedure. 

§  50.  No  definite  System  of  Classification  Adopted — An  analysis 
of  the  statutory  provision  defining  the  jurisdiction  of  the  Appel- 
late Court  will  show  that  the  General  Assembly  did  not  proceed 
upon  a  definite  and  uniform  system  in  designating  the  classes 
of  cases  of  which  that  court  is  given  jurisdiction.1  Some  of  the 
classes  are  determined  by  the  character  of  their  members  alone, 
while  one,  at  least,  of  the  classes  is  complex,  inasmuch  as  it 
involves  both  character  and  amount.  The  first  class — prose- 
cutions for  misdemeanors — is  determined  by  the  character  of 
its  members,  irrespective  of  the  amount  involved.2  If,  however, 
the  penalty  prescribed  makes  the  case  one  of  felony,  then  its 
character  is  such  that  jurisdiction  falls  to  the  Supreme  Court. 
It  is,  indeed,  the  penalty  prescribed  that  gives  character  to  the 
case.  The  second  class,  composed  of  cases  ' '  originating  before 
a  justice  of  the  peace  where  the  amount  in  controversy  exceeds 
fiftv  dollars  exclusive  of  costs,"  is  determined  by  the  character 
of  the  tribunal  in  which  its  members  originate,  and,  so  far  at 
least  as  concerns  the  question  of  jurisdiction  between  the  new 
and  the  old  court,  the  amount  in  controversv  is  not  important,3 

853.  It  is  clear  that  the  conclusion  as-  l  §  1,  Act  of  February  28,  1S91;  Art- 
ported  in  the  case  cited  is  correct,  since  1S91,  p.  39. 

the  higher  court  ought,  on  principle,  have  2  It  may  be  said  once  for  all  that  each 

authority  over  all  such  questions,  and  and  every  class  is  subject  to  the  funda- 

the  entire  subject  should  be  within  the  mental   and  decisive  exception  created 

jurisdiction  of  that  tribunal,  so  that  if  by  the  principle  that  no  constitutional 

errors  have  been  committed  it  can  rec-  question  can  be  determined  by  the  Ap- 

tifv  them.     It  should  be  there  so  as  to  pellate  Court. 

prevent  conflict  and  confusion.     It  may,  3  The  amount    is  important,  as   will 

indeed,  well  be  doubted  whether  final  presently  appear,  in  determining  wheth- 

jurisdiction    over    constitutional    ques-  er  there  is  any  right  of  appeal, 
tions  can  be  vested  elsewhere  than  in 
the  highest  court  of  the  State. 


lj  APPELLATE   PROCEDURE. 

but,  as  will  hereafter  be  shown,  there  maybe  cases  which  orig- 
inate in  a  justice's  court  that  must  finally  go  to  the  Supreme 
Court.1  The  third  class,  comprising  "  actions  for  the  recovery 
of  money  only  where  the  amount  in  controversy  does  not  ex- 
ceed one  thousand  dollars,''  blends  the  elements  of  character 
and  amount,  for  if  the  character  of  the  case  is  not  such  as  to 
make  it  one  "  for  the  recovery  of  money  only  "  it  is  not  within 
the  jurisdiction  of  the  Appellate  Court,  no  matter  what  may  be 
the  amount  in  controversy,  but  an  action  may  be  for  the  recov- 
ery  of  money  only  and  still  not  be  within  the  jurisdiction  of  that 
court  if  the  amount  in  controversy  exceeds  one  thousand  dol- 
lars. The  fourth  class,  "  all  cases  for  the  recovery  of  specific 
personal  property,"  is  designated  in  very  comprehensive  terms, 
and  is  determined  solely  by  the  character  of  its  members.  The 
fifth  class,  "actions  between  landlord  and  tenant  for  the  recov- 
ery of  the  possession  of  the  leased  premises,"  is  founded  upon 
the  principle  of  character.  This  is  also  true  of  the  sixth  class, 
"  all  cases  of  appeals  from  orders  allowing  or  disallowing  claims 
against  decedents'  estates." 

§  51.  Actions  originating  before  a  Justice  of  the  Peace — The  sec- 
ond class  of  cases,  the  class  composed  of  cases  which  originate 
before  justices  of  the  peace,  requires  some  consideration.  It 
may  be  said,  at  the  outset,  that  comprehensive  as  is  the  lan- 
guage employed  in  specifying  the  class,  still,  it  must  be  true 
that  there  are  cases  which  originate  before  a  justice  of  the  peace 
that  must  go  from  the  circuit  or  superior  court  to  the  Supreme 
Court.  The  most  important  cases  which,  although  originating 
before  a  justice  of  the  peace,  go  to  that  court  are  those  in  which 
the  title  to  real  estate  is  actually  in  issue.  It  must,  of  course, 
be  clear  that  the  title  is  involved  and  that  it  is  put  in  issue  in 
the  proper  method,  but  if  title  is  actually  involved  and  is  appro- 
priately put  in  issue,  it  must  always  be  the  controlling  factor, 
and,  as  such,  invariably  give  character  to  the  case.  If  the  issue 
of  title  does  give  character  to  a  case  and  is  paramount,  then  all 
other  things  are  mere  incidents,  and  the  case  must  go  where  the 
principal  carries  it. 

1  Sec  ante,  §  40.  post,  §51. 


THE  APPELLATE  COURT.  );; 

§52.  Actions  involving  Title  to  real  estate  —  It  may  be  well 
enough  to  further  fortify  our  conclusion  that  the  issue  of  title  to 
real  estate  is  the  principal  element  in  every  case  where  it  is  the 
direct  and  controlling  question,  by  illustrations  and  authorities, 
although  we  have  elsewhere  given  the  question  consideration.1 
The  common  law,  as  every  one  knows,  regarded  land  with  pe- 
culiar favor  and  placed  it  in  a  much  higher  rank  than  personal 
property.  The  method  of  conveying  title  was  peculiar,  and 
land  was  free  from  judgment  liens.  But  it  is  not  necessary  to 
go  beyond  our  own  laws,  for  they  give  to  land  a  high  place  and 
they  have  always  excluded  questions  of  title  from  the  jurisdiction 
of  subordinate  tribunals.  A  forcible  illustration  is  supplied  by  the 
exclusion  of  questions  of  title  from  the  jurisdiction  of  the  com- 
mon pleas  court  which  once  formed  part  of  our  judicial  system.2 
But  more  striking  is  the  illustration  supplied  by  the  statutes  and 
the  decisions,  which  assert  that  where  the  title  to  land  is  prop- 
erly put  in  issue  in  an  action  before  a  justice  of  the  peace  his 
jurisdiction  ceases  and  the  case  is  transformed  into  one  for  the 
circuit  court.3  There  is  in  such  instances  a  change  of  jurisdic- 
tion because  the  new  issue  radically  alters  the  character  of  the 
case.  The  case,  although  commenced  in  a  subordinate  tribu- 
nal, travels  beyond  its  jurisdiction  to  a  higher  court,  and,  when 
it  gets  there  by  the  true  road,  it  becomes  a  case  within  the  ju- 
risdiction of  the  higher  court  as  effectually  as  if  it  had  there 
originated.  If  this  be  true  it  must  also  be  true  that  the  appeal, 
when  taken,  is  from  the  case  within  the  jurisdiction  of  the  higher 
court  and  not  from  the  subordinate  statutory  tribunal.  The  con- 
clusion asserted  by  us,  it  may  with  propriety  be  further  said,  is 
necessary  to  give  harmony  to  our  system  of  procedure  and  to  pre- 

1  Ante,  (j  40.  McCIure  v.  White.  9  Ind.  20S;   Parker 

2  Dixon  v.  Hill,  S  Ind.  147;  City  of  v.  Russell,  3  Blackf.  411;  Bispham  v. 
Lamasco  v.  Brinkmeyer,  12  Ind.  349;  Inskeep,  1  Coxe.  231.  The  title  must,  of 
Clark  v.  Trovinger,  S  Ind.  334;  Crom-  course,  be  in  issue  in  a  case  where  it  can 
■well  v.  Lowe,  14  Ind.  234.  be  put  in  issue,  ami  it  musl   be  so  in  is- 

3  R.  S.  1SS1,  §  1434;  Bibbler  v.  Wal-  sue  that  a  decision  upon  it  must  be  ren- 
ker,  69  Ind.  362;  Kiphart  v.  Brennemen,  dered.  Melloh  v.  Demott,  79  Ind.502; 
25  Ind.  152;  Short  v.  Bridwell,  15  Inch  Burgett  v. Bothwell,  86 Ind.  149. 

2ii ;  O'Connell  v.  Gillespie.  17  Ind.  459; 


j  1  APPELLATE   PROCEDl  RE. 

vent  the  great  subject  of  the  ownership  of  land  from  being  divided 
up  and  distributed  among  different  courts.  The  strong  and  clear 
purpose  of  the  courts  and  law -makers  has  always  been  to  unify 
and  make  certain  the  principles  of  real  property  law,  as,  to  cite 
one  of  many  instances,  is  illustrated  by  the  often  expressed  de- 
termination of  courts  to  adhere  to  a  decision  of  doubtful  sound- 
ness because  "  it  has  become  a  rule  of  property."  But,  without 
going  further  into  the  subject,  we  venture  to  say  that  the  deeper 
it  is  explored  the  stronger  will  be  the  evidence  supporting  our 
conclusion,  for  an  infinite  variety  of  decisions  may  be  collected 
wherein  the  purpose  to  keep  the  rules  of  real  property  law  uni- 
form and  firm  by  keeping  jurisdiction  of  cases  involving  interests 
and  estates  in  land  in  one  tribunal  is  clearlv  manifested.1 


i  53.  Amount  in  controversy  before  Justices  of  tbe  Peace  deter- 
mines Jurisdiction — The  amount  in  controversy  in  actions  orig- 
inating before  a  justice  of  the  peace  determines  the  question 
whether  there  is  any  right  of  appeal,  for  if  the  amount,  exclud- 
ing costs,  is  less  than  fifty  dollars  no  right  of  appeal  exists.2  As 
the  provision  in  the  act  of  1891  is  substantially  the  same  as  that 
contained  in  the  statute  regulating  appeals  to  the  Supreme 
Court  in  cases  originating  before  a  justice  of  the  peace,  the  con- 
struction given  that  statute  must  be  deemed  the  one  which  the 
act  of  1891  is  to  receive.  The  rule  established  by  the  decisions 
is  that  at  least  lift)'  dollars,  exclusive  of  costs,  must  be  actually 
in  controversy,  so  that  the  question  is  to  be  determined  by  as- 
certaining what  amount  is  actually  involved.  It  is  evident  that 
where  there  is  a  judgment  for  less  than  fifty  dollars  and  the 
plaintiff  is  content,  there  is,  as  a  general  rule,  no  right  of  ap- 


1  Pratt  v.  Kendig.  12S  111.  293,  S.  C.21  410;  Hughes  v.  Swope  (Ky.).  1   S.  W. 

\.  E.  \\r\K  \>)-\    Mover  v.  Swygart,  125  Rep.  394:    Nichols  v.  Otto,  132   111.  91, 

111.  2(  7    \".  E.  Rep.  450;   Bice  S.  C.  23  X.  E.  Rep.411:   Getman  t/.lh- 

-     II. ill.  [20  Hl.597,  S.C.  12  N.E.  Rep.  gersoll,  117  N.  Y.  75,  S.  C.  22  N.  E.  Rep. 

<  Oswald   v.  Wolf,  2;  III.  App.  Co.  750;  Pierce  :.  George,  30  Mo.  App.650; 

I..-    MoyiH-    v.     Harding,    132    111.  Moultrie   v.  Dixon,  26   So.  Car.  296,  S. 

;    V   E.  Rep.    |i'>.    Stun/  v.  C.2  S.  E.  Rep.  24. 

Stun/,  131   [11.  309,  S.   C.  2}  N.  E.  Rep.  2  A  fife,  §§47,    )s- 


THE  APPELLATE  COURT.  45 

peal.1  But  to  this  general  rule  there  are  exceptions.2  If  the 
defendant,  by  a  plea  of  set-off  or  by  a  counter-claim,  shows,  by 
the  statement  of  material  facts,  and  not  merely  by  a  formal  de- 
mand or  prayer,  that  he  is  entitled  to  a  judgment  for  fifty  dol- 
lars or  more,  then  the  right  of  appeal  exists. 

§  54.    Amount  in  Controversy  in  the  Trial  Court — General  rule— 

The  general  rule  is  that  the  amount  in  controversy  in  the  tri- 
bunal where  the  case  originated  is,  in  cases  where  the  amount 
alone  is  determinative,  the  test  by  which  the  question  of  juris- 
diction is  to  be  determined.  It  is  possible  that  there  may  be 
exceptions  to  this  general  rule,  as  there  are  to  most  general  rules, 
but  if  there  be  exceptions  they  are  so  rare  as  to  serve  to  prove 
rather  than  destoy  the  general  rule.  Our  decisions  lay  down 
the  general  rule  as  we  have  stated  it,  and  it  has  long  prevailed.3 

§  55.  Amount — Exceptional  Cases — Elements  may  be  added 
which  will  change  the  operation  of  the  general  rule,  for  it  may 
happen  that  an  added  element  will  so  completely  transform  the 
character  of  the  case  as  to  leave  the  amount  an  incident  only 
and  as  such  overshadowed  by  a  principal  issue.  We  have  in 
another  place  endeavored  to  show  that  where  the  question  of 
title  is  directly  and  legitimately  put  in  issue  it  becomes  the  in- 
fluential and  determining  element.  Other  cases  may  be  con- 
ceived in  which  the  question  of  amount  gives  way  before  some 
more  important  element.     This   statement  finds  support  from 

1  Ex  parte  Sweeney,    126   Ind.   583,  2  In  the  preceding  clapter  we  have 

S.    C.    27    N.    E.    Rep.   127;    Cincin-  shown  that  where   the  validity  of  mu- 

nati,  etc.,  Co.  v.  McDade,  m   Ind.  23,  nicipal    ordinance    is  directly  in    issue 

26;  Winship  v.  Block,  96  Ind.  446;  Pars-  the  jurisdiction  is  in  the  Supreme  Court, 

ley  v.  Eskew,   73  Ind.  558;   Wagner  v.  Ante,  §43;  City  of  Hammond  v.  New 

Kastner,   79  Ind.   162;    Baltimore,  etc.,  York,  etc.,  R.  R.  Co.,  126  Ind.  597. 

Co.  v.  Johnson,  83  Ind.   57;    Galbreath  s  Overton    v.   Overton,    17    Ind.   226; 

f.  Trump,  S3  Ind.  381;  Breidert  v.  Krue-  Bogart  v.  City  of  New  Albany.  1  Ind. 

ger,  76  Ind.   55;   Sprinkle   V.  Toney,  73  3S;  Tripp  v.  Elliott,  5  Blackf.  16S;  Reed 

Ind.  592;   Halleck  v.  Weller,  72  Ind. 342;  v.    Sering,   7  Blackf.   135.     There  may 

Dailey  v.  City  of  Indianapolis,  53  Ind.  however,  be    cases  where    the  amount 

4S3;     Morn  it    v.   Wilson,    44  Ind.  476;  alone  is  not  determinative,  and  where 

Bowers    v.  Town  of  Elwood,  45  Ind.  this  is  true  the  reason  of  the  rule  fails 

234;   Donovan  v.  Town  of  Huntington,  and  so,  also,  does  the  rule. 
24  Ind.  321;  Jones  v.  Yetman,6  Ind.  46. 


|,;  APPELLATE   PROCEDURE. 

the  case  wherein  it  was  held  that,  although  the  amount  in  con- 
troversy  was  not  sufficient  to  give  the  Supreme  Court  jurisdic- 
tion, yet,  as  there  was  an  order  abating  a  nuisance,  an  appeal 
would  lie.1 

§  56.  Jurisdiction  as  dependent  upon  Amount — As  appears  from 
the  analysis  given  at  another  place,  of  the  section  of  the  act 
distributing  jurisdiction  to  the  Appellate  Court,  the  amount  in 
controversy  is  one  of  the  important  elements  which  determines 
the  question  of  jurisdiction  in  the  third  class  of  cases.  In  as- 
certaining the  amount  in  controversy,  as  has  already  been  sug- 
gested, regard  is  to  be  had  to  the  material  facts  alleged  in  the 
pleadings,  or  apparent  of  record,  for  the  amount  actually  in- 
volved can  not  be  justly  said  to  be  that  named  in  the  formal 
demand  or  prayer  for  judgment.  If  it  were  granted  that  the 
question  of  jurisdiction  may  be  determined  by  a  naked  formal 
demand,  or  a  bare  general  allegation,  it  would  result  in  per- 
mitting parties  to  settle  the  question  of  jurisdiction  by  a  formal 
allegation  or  demand,  and  thus  involve  a  violation  of  the  estab- 
lished rule  that  parties  can  not  create  jurisdiction  of  the  subject. 
It  is,  therefore,  correctly  held  that  a  naked  allegation  or  de- 
mand is  not  the  basis  upon  which  jurisdiction  is  to  be  asserted.2 
The  substanial  facts  appearing  in  the  pleadings,  or  record,  are 
of  controlling  influence,  and  it  is  from  them  that  the  question 

1  Vonderweit  v.  Town  of  Centerville,  Gas  Light  Co.  (La.),  7  So.  Rep.  538. 

i5lnd-447.     The  doctrine  of  this  case  See,  generally,   McCoy  v.  McCoy,  33 

is  re-asserted  in   Hall  v.  Spurgeon,  23  W.  Va.    60,    S.  C.  10  S.  E.  Rep.   19; 

Incl.  73,  where  the  court  gives  as  an  ex-  Callan  v.  Bransford,  10  S.  E.  Rep.  317; 

ample  of  cases  wherein  the  amount  in  Quimby  v.  Hopping,  52  N.  J.  L.  117, 

controversy  is  not  determinative  of  the  S.  C.  19  Atl.  Rep.  123;  Clark  v .  Gresh- 

question  of  jurisdiction,  the  following:  am   (Miss.),   7    So.   Rep.  224;    State  v. 

"  Where  the  defendant  claims  a  set-off  St.  Louis  Court  of  Appeals,  87  Mo.  569; 

which  is  disallowed,  or  there  is  a  judg-  Pochelu  v.  Catonnet,  40  La.  Ann.  327, 

ment   of  forfeiture"    in   addition  to  the  S.  C.  4  So.  Rep.  74.     Where  the  contro- 

money  judgment."  versy  is  by  admissions  in  the  pleadings 

3  Painter  z/.Guirl,  71  Ind.  240;  Sprin-  reduced  below  the  sum  of  one  thousand 

kle   ;■.  Tiiiht,  73   Ind.  592;  Cincinnati,  dollars  jurisdiction  is  in  the  Appellate 

etc.,  Co.   v.  McDade,   in   Ind.  26;    Ex  Court.     Knapp  v.  Deyo,  108  N.  Y.  518, 

part,     Sweeney,  126  Ind.  583,  S.  C.  27  S.  C.  15  N.  E.  Rep.  540;    Campbell  v. 

N.E.Rep.127;   Lee  v.  Watson,  1  Wall.  Mandeville,  no  N.  Y.  628,  S.  C.  17  N. 

337;     Hannony  Club  v.  New  Orleans  E.  Rep.  S66. 


THE  APPELLATE  COURT.  47 

is  to  be  determined.  If  it  appears  from  such  facts  that  the 
amount  in  controversy  exceeds  one  thousand  dollars  the  juris- 
diction is  in  the  Supreme  Court,  except,  of  course,  where  the 
law  expressly  vests  the  Appellate  Court  with  jurisdiction  irre- 
spective of  the  amount  involved. 

§  57.  Money  Recoveries  only — Where  the  action  is  one  for  the 
recovery  of  money  only,  and  the  controversy  is  over  a  sum  not 
exceeding  one  thousand  dollars,  the  appellate  jurisdiction  is  in 
the  Appellate  Court,  no  matter  what  may  be  the  character  of 
the  action.  The  test  is  whether  the  principal  element  gives  the 
case  the  character  of  an  action  for  the  recovery  of  money  only, 
for  if  it  is  an  action  for  the  recovery  of  money  only,  and  the 
amount  involved  does  not  exceed  one  thousand  dollars,  then, 
the  case,  with  all  its  necessary  incidents,  falls  to  the  Appellate 
Court,  whatever  may  be  its  class.  Whether  it  is  an  action  ex 
contractu,  or  an  action  ex  delicto,  the  case  goes  to  that  tribunal, 
if  only  a  money  recovery  is  obtainable.  The  nature  of  the 
action  is  not  of  controlling  influence  unless  it  is  such  as  to  make 
it  one  where  the  principal  element  renders  the  money  recovery 
a  mere  incident.  This  general  doctrine  was  asserted  by  the 
decisions  made  upon  the  statute  defining  the  jurisdiction  of  the 
old  common  pleas  court,1  and  the  doctrine  is  the  only  one  de- 
fensible on  principle.  If  any  other  doctrine  were  asserted, 
perplexity  and  confusion  would  inevitably  result,  producing  a 
conflict  that  no  court  could  control. 

§  58.  Effect  of  the  limiting  words  of  the  Statute — The  limitation 
created  by  the  words  "  for  the  recovery  of  money  only,"  is  an 
important  one,  as  appears  from  what  has  been  said  in  another 
place.2  It  is  unnecessary  to  here  enlarge  upon  the  question 
presented  by  the  limiting  words  referred  to,  for  it  seems  very 
clear,  from  what  has  been  elsewhere  shown,  that  the  addition 
of  a  principal  element  may  make  a  case  one  in  which  the  money 
recovery  is  a  mere  incident.  Wherever  the  money  recovery  is 
an  incident  to  some  principal  issue,  and  the  principal  issue  im- 

1  McCole  :•.  State,  10  Ind.  50;   Hawk-         2  Ante,  §§  35,  36. 
ins  v.  State,  24  Ind.  2SS. 


48  APPELLATE   PROCEDURE. 

presses  upon  the  case  such  a  character  as  to  bring  it  within  the 
jurisdiction  of  the  Supreme  Court,  there  it  must  go,  but  where 
a  money  recovery  is  the  principal  element,  the  case  falls  to  the 
new  tribunal. 

i  59.  Determination  of  the  Amount  in  Controversy — It  is  not 
possible  to  lay  down  a  rule  which  will  in  all  cases  determine 
the  amount  in  controversy.  It  is  easy  enough  to  declare  that 
all  cases  for  the  recovery  of  money  only  where  the  amount  in 
controversy  does  not  exceed  one  thousand  dollars  arc  within 
the  jurisdiction  of  the  Appellate  Court,  but  to  say  what  the 
amount  in  controversy  actually  is  will  be  found,  in  some  in- 
stances, to  be  very  difficult.  One  class  of  cases,  that  of  actions 
for  personal  injuries,  will  supply  instances  of  special  difficulty. 
There  can,  of  course,  be  no  difficulty  in  such  cases  where  the 
judgment  exceeds  one  thousand  dollars,  or  in  cases  where  it 
is  for  a  less  amount,  and  the  plaintiff  is  satisfied,  but  there  may 
be  cases  where  it  is  less  than  that  sum,  and  the  plaintiff  claims 
more,  in  which  very  serious  difficulty  will  be  encountered.  So 
there  will  be  difficultv  in  cases  of  that  class  where  a  demurrer  is 
sustained  to  a  complaint.  As  much  as  can  now  be  safely  said,  is 
that  if  there  is  fair  reason  for  debate  as  to  the  amount  as  appears 
from  an  examination  of  the  material  facts,  jurisdiction  is  ordinar- 
ily in  the  Supreme  Court.  The  fundamental  principle  that  all  ju- 
risdiction not  distributed  to  the  Appellate  Court  remains  in  that 
tribunal,  requires  that  where  there  is  fair  doubt  as  to  where  the 
jurisdiction  lies,  the  doubt  should  be  resolved  in  favor  of  the 
court  having  authority  over  all  cases  not  placed  elsewhere  by 
statute.1 

i  GO.  Effect  of  Judgment  in  the  Trial  Court  upon  the  question  of 
the  Amount  in  Controversy — It  is  not  every  case  that  can  be  as- 
signed to  the  proper  tribunal  by  a  simple  inspection  of  the  ver- 
dict or  judgment,  for  there  may  be  cases  where  a  plaintiff 
recovers  less  than  one  thousand  dollars  when  a  much  greater 
sum  should  be  awarded  him.  It  is  probably  true  that  the  judg- 
ment is  -prima  fade  evidence  of  the  amount  in  dispute,  but  it  can 

1  Ex  parte  Sweeney,  \zG  Ind.  583. 


Till".   APPELLATE  COURT.  49 

not  always  be  conclusive.  Thus  a  plaintiff  may  sue  upon  a 
contract  entitling  him  to  more  than  one  thousand  dollars,  re- 
cover much  less,  and  unsuccessfully  move  for  a  new  trial  on 
account  of  error  in  assessing  the  amount  of  his  recovery.  In 
such  a  case  it  seems  clear  that  if  the  substantial  allegations  or 
facts  disclose  a  fair  dispute  as  to  the  amount  claimed  in  excess 
of  the  judgment,  there  is  a  controversy  involving  a  sum  in 
excess  of  one  thousand  dollars.1  Suppose,  for  example,  that  a 
plaintiff  should  sue  on  a  bond  providing  for  the  paj^ment  of 
three  thousand  dollars  as  liquidated  damages,  and  that  the  law- 
entitles  him  to  recover  the  sum  named  as  liquidated  damages, 
but  the  trial  court  should,  under  an  erroneous  view  of  the  law, 
deny  him  such  damages  and  direct  a  verdict  for  him  in  the  sum 
of  seven  hundred  dollars,  does  it  not  seem  clear  that  he  may 
appeal  to  the  Supreme  Court?2  Or,  again,  suppose  it  to  be 
shown  by  a  special  finding  that  a  defendant  is  entitled  on  his 
counterclaim  to  a  judgment  for  five  thousand  dollars  and  that 
he  is  only  awarded  one  thousand  dollars,  would  not  the  Supreme 
Court  have  jurisdiction?  Illustrative  cases  might  easily  be 
multiplied,  but  these  are  sufficient,  as  we  believe,  to  show  that 
where  there  is  a  fair  question  as  to  whether  a  party  who  un- 
successfully claims  judgment  for  more  than  one  thousand  dol- 
lars is  not  entitled  to  a  larger  judgment,  he  may  appeal  to  the 
Supreme  Court,  although  the  verdict  and  judgment  are  in  his 
favor,  but  for  a  sum  less  than  he  has  put  in  controversy  by  sub- 

1  There  is  some  confusion  in  the  de-  Wilson  v.  Daniel,  for  all  that  it  decides 
cisions  of  the  Supreme  Court  of  the  is  that  the  amount  in  controversy  can 
United  States  upon  the  general  ques-  not  be  determined  by  the  claim.  Wil- 
tion.  In  Wilson  v.  Daniel,  3  Dall,  400;  a  son  v.  Daniels  is,  as  it  seems  to  us, 
very  broad  doctrine  was  declared,  and  in  rightly  decided  in  so  far  as  it  holds,  as 
Spear  v.  Place,  11  How.  (U.  S.)  522,  Ellsworth.  C.  J.,  expresses  it,  that,  we 
526,  that  case  is  cited  with  approval,  are  not  to  regard  the  verdict  or  judg- 
But  in  Gordon  v.  Ogden,  3  Peters,  33,  ment  as  the  rule  for  ascertaining  the 
it  was  said  that  Wilson  v.  Daniel  had  value  of  the  matter  in  dispute  between 
been  departed  from  in  practice,  although  the  parties,''  although  the  doctrine 
Marshall,  C.  J.,  said:  "We  should  be  ought,  perhaps,  to  be  qualified  by  add- 
much  inclined  to  adhere  to  Wilson  v.  ing  that  the  verdict  or  judgment  is  not 
Daniel  had  not  a  contrary  practice  since  conclusive  as  to  the  amount  in  contro- 
prevailed."     The  decision    in    Wise    v.  vers  v. 

Columbian   Turnpike    Co.,    7    Cranch,  2  Barry   v.  Edmunds,   116  U.   S.  550, 

276,  is   not   opposed  to  the  doctrine  of  560. 

4 


50  APPELLATE  PROCEDURE. 

stantial  allegations.      It  is,  of  course,  implied  in  what  has  been 
1  that  the  sum  in  controversy  exceeds  one  thousand  dollars. 

§61.  Interest  and  costs  which  accrue  subsequent  to  the  Appeal — 
creneral  rule  is  that  the  amount  recovered  in  the  court  of 
original  jurisdiction  governs.1  We  have  already  spoken  of  the 
eptions  to  this  general  rule,  and  we  shall  here  speak  very 
generally  of  its  scope  and  effect.  This  rule  requires  that  the 
amount  as  established  by  the  judgment,  and  not  what  is  subse- 
quently added  to  it  in  the  form  of  such  incidents  as  interest  or 
costs,  shall  alone  be  considered  in  determining  whether  the 
amount  involved  gives  jurisdiction.  It  is  obvious  that,  under  a 
system  like  ours,  where  the  questions  arising  on  appeal  are  to 
be  determined  by  the  record,  the  jurisdictional  amount  must  be 
ascertained  from  the  record  and  not  from  extrinsic  evidence. 
The  amount  of  the  judgment  as  it  is  disclosed  by  the  record, 
irrespective  of  accrued  interest,  must,  as  a  general  rule  deter- 
mine the  question  of  jurisdiction.2  It  has,  indeed,  been  held 
under  the  former  statute  regulating  appeals  to  the  Supreme 
Court  that  interest  which  accrued  prior  to  the  judgment  must 
be  excluded,  but  this  decision  is  of  doubtful  soundness.3  The 
decision  just  mentioned  can  not,  however,  govern  appeals  un- 
der the  present  statute  for  that  does  not  exclude  interest  which 
accrued  prior  to  the  judgment  and  is  included  in  the  amount 
recovered.4 

*    'Overton    v.   Overton.  17    Ind.  220;  Bruce  v.  Manchester  Co.,  117  U.  S.  514; 

irl  v.  The  City  of  New  Albany,  1  Knapp  v.  Banks.  2  How.  73. 

Ind.  38;    Tripp  v.  Elliott,  5  Blackf.  168;        3  Wagner  v.  Kastner,  79  Ind.  162. 

Reed  v.  Sering,  7  Blackf.  135.      A  sum         *  Zeckendorf   v.  Johnson,  123   U.  S. 

paid    after   the  commencement   of  the  617;  The  Patapsco,  12  Wall.  451;    The 

action  can  not,  it  isheld.be  taken  into  Rio   Grande.    19    Wall.    17S.     Interest 

consideration  so  as  to  swell  the  juris-  may  form  an  element  in  the  amount  of 

dictional  amount.     Guirdy   v.  Garland  recovery  and  when  included  in  the  judg- 

!■•'    .  6  So.  Rep.  563.  mi  :ii  i-  certainly  to  be  taken  into  con- 

2  Ex  parte    Sweeney,   126   Ind.  5S3;  sideration,  or,   more  strictly  speaking, 

of    United    Stale-   v.   Daniel,    12  the  appellate   tribunal  can   not  exclude 

::      Walker     :•.    The     United  it.   and    thus    diminish    the    amount  re- 

3,     1     Wall.    [82;     Elgin    v.    Mar-  covered.     The    rule   goes  even    farther. 

shall,    k/.   U.  S.  578;    Western  Union  Littlefield  v.  Perry,  21  Wall. 205;  Bates 

Co.    -       I'  U.    S.    565;  v.  St.  Johnsbury,  etc.,  Co.,  32   Fed.  R. 

Thompson    v.    Butler,   95    U.    S.   694;  628.     Under  the  rule  that  the  judgment 


THE  APPELLATE  COURT.  ;,] 

§  62.  Remittitur — Effect  on  question  of  Jurisdiction — It  is  held 
by  the  Supreme  Court  of  the  United  States  that  where  a 
remittitur  is  filed  before  judgment  it  will  preclude  an  appeal  if 
it  reduces  the  recovery  below  the  prescribed  amount,1  but  if 
entered  after  judgment  it  will  not  preclude  an  appeal.2  It  is 
obvious  that  a  remittitur  before  judgment  is  effective,  since  a 
finding  or  verdict  is  not  an  adjudication,  but  to  become  opera- 
tive a  finding  or  verdict  must  be  followed  by  a  judgment,  and 
even  then  it  is,  in  strictness,  only  the  judgment  that  constitutes 
an  adjudication.  A  valid  remittitur,  plainly  enough,  reduces 
the  amount  in  controversy,  but  to  be  effective  it  must  precede 
the  acquisition  of  jurisdiction  by  the  appellate  tribunal.  If  it 
were  otherwise,  jurisdiction  might  be  defeated  by  the  act  of  a 
party  performed  for  the  purpose  of  defeating  jurisdiction  and 
in  cases  where  only  a  trivial  sum  is  remitted. 

§  63.  Counter-claim  as  affecting  Jurisdiction — A  counter-claim  or 
cross-complaint  may,  it  is  obvious,  state  such  facts  as  will  make 
an  actual  controversy  for  an  amount  exceeding  one  thousand 
dollars,  and  if  the  amount  in  controversy  does  exceed  that  sum, 
the  cross-complainant  may,  and,  indeed,  must,  appeal  to  the  Su- 
preme Court,  if  he  appeals  at  all.3  But  if  the  case  turns  wholly 
upon  the  cross-complaint  or  counter-claim  and  the  cross-com- 
plainant is  content  with  the  judgment  for  one  thousand  dollars  or 
less,  the  original  plaintiff  can  not  appeal,  since,  if  the  cross- 
complainant  is  satisfied,  no  more  than  the  amount  for  which  judg- 
ment was  given  is  in  controversy.  There  may,  however,  be  a 
case  where  a  recovery  by  a  counter-claimant  will  vest  in  the 
original  plaintiff  a  right  of  appeal  to  the  Supreme  Court,  as,  for 
instance,  where  the  facts  pleaded  show  a  right  on  the  part  of 
the  plaintiff  to  a  recovery  of  more  than  one  thousand  dollars, 

as  entered,  and  not  what  subsequently  l".  S.  j^j;  First  National  Bank  v. Red- 
occurs,    determines    the    jurisdictional  ick,  noU.  S.  224. 

amount,  it  is  held  that  the  tact   that  the  2  New    York,    etc.,    Co.    v.  Fifth  Xa- 

judgment  may  operate  upon  other  cases  tional  Dank,  11S  U.  S.  60S. 

is  not  of  controlling  inlluence.     Elgin  3  Ex  parts   Sweeney,    126    Ind. 

v.  Marshall,    106   U.  S.  578;     Bruce   v.  Wysor  v.  Johnson,  1  Ind.  App.  Ct. 

Manchester,  etc.,  Co.,  117  U.  S.  514.  Dushane   v.   Benedict,    1:0  U.  8.630; 

1  "Thompson  v.  Butler,  95   U.  S.  694;  Ryan  v.  Bindley,  1  Wall.  66;    Forster, 

Alabama  Gold,  etc.,  Co.  v.  Nichols,  109  etc.,  Co.  v  Guggemos,  z\  Mo.  App.  444. 


APPELLATE   PROCEDURE. 

and  his  claim  is  not  only  defeated  but  a  sum  is  awarded  the  ad- 
verse part}   upon  a  plea  of  set-off  or  upon  a  counter-claim. 

§  6  I.  Counter-claim — Change  of  character  of  Case  by — A  coun- 
ter-claim may  not  only  create  a  controversy  changing  the  dis- 
pute as  to  the  amount,  but  it  ma)7  also  plead  such  facts  as  will 
radically  change  the  nature  of  the  case.  While  it  is  true  that 
where  a  counter-claim  or  cross-complaint  is  filed  the  case  re- 
mains in  a  general  sense  the  same,  yet  it  is  also  true  that  a 
counter-claim  may  introduce  ah  issue  into  the  case  that  will 
overshadow  and  control  all  others.  This  principle  is  asserted 
and  enforced  in  the  cases  which  adjudge  that  where  a  counter- 
claim presents  a  question  of  title  it  becomes  the  paramount  is- 
sue and  makes  a  case  entitling  a  party  to  a  new  trial  as  of 
right.1  It  is  illustrated  in  the  cases  which  hold  that  where  a 
suit  is  brought  to  revest  title  in  a  case  where  an  owner  is  in- 
duced by  fraud  to  part  with  it,  title  is  the  principal  issue.2  In 
whatever  form  the  issue  of  title  is  made  it  is  the  determining 
issue,3  provided,  of  course,  the  issue  is  made  by  a  party  entitled 
to  make  it,  and  in  an  appropriate  method.  The  principle  we 
are  considering  finds  full  development  and  strong  enforcement 
in  partition  proceedings,  for  in  a  long  line  of  cases  it  is  ad- 
judged that  title  may  be  put  in  issue  in  such  proceedings  by 
the  complaint  or  by  a  counter-claim,  and  when  put  in  issue  and 
adjudicated  the  judgment  is  conclusive,  although  in  cases  where 
no  such  issue  is  made  a  judgment  in  partition  proceedings  is 
not  conclusive  upon  the  question  of  title.4 

1  Kreitline   v.   Franz,    106    Ind.   359;  crs  7'.  Beach,  115  Ind.  413;    Dumont  v. 

Gullet    -.  Miller,  106  Ind.  75,  78;   Ham-  Dufore,  27  Ind.  2(>$;    Farrar  v.  Clark, 

man    r.   Mink,   99    Ind.    277:     Physio-  97  Ind.  447. 

Medical  College  v.  Wilkinson,  89  Ind.  *  Watson    v.   Camper,    119   Ind.  60; 

•-  v.  Baston,  89  Ind.  185.  L'Hommidieu  v.  Cincinnati,  etc.,  Co., 

-  Adams  v.Wilson, 60  Ind. 560;  War-  120  Ind.  435,  441;    Woollen-  v.  Gray- 
burton  z\  Crouch,  108  Ind.  83.  son,  no  Ind.  149;     Spencer  v.  McGon- 

:'  Bisel  v. Tucker,  1:1  Ind.  249;  Miller  agle,  107  Ind.  410;  Thorp  v.  Hanes,  107 

ansville   National    Bank,  99  Ind.  Ind.    324;    Luntz  v.   Greve,    102    Ind. 

272;     Ilanmian    v.    Mink,   99    Ind.   279;  173.  and  eases  cited.     Miller  r.  Noble, 

Moor  v.  Seaton,  31  Ind.  11;   Benders.  86  Ind   527;     McMahan  v.  Newcomer, 

Sherwood, 21  Ind.  167;  Hunter  v.Chris-  82    Ind.  565,  and   authorities  cited.     It 

tian.  70  Ind.  439.     See,  generally,  Rog-  will   be  found,  as    we    have   repeatedly 


THE  APPELLATE  COURT. 

§  65.  Actions  for  the  recovery  of  Personal  Property — Actions  for 
the  recovery  of"  specific  personal  property,"  with  their  usual 
incidents,  are  within  the  jurisdiction  of  the  Appellate  Court. 
The  language  is  so  clear  and  comprehensive  that  there  is  no 
need  for  construction.  Under  a  former  statute  it  was  held  that 
the  amount  involved  did  not  affect  the  question  of  jurisdiction,1 
and  this  doctrine  must  apply  to  the  act  creating  the  Appellate 
Court.  An  action  for  the  possession  of  specific  personal 
property  is,  in  its  essential  and  primary  nature,  a  possessory 
action,  but  it  may,  nevertheless,  involve  the  question  of  owner- 
ship.2 It  is,  however,  not  material,  so  far  as  concerns  the 
question  under  immediate  mention,  whether  the  particular  case 
does  or  does  not  involve  the  question  of  title,  for  it  is  evident 
ihat  the  legislature  intended  to  place  one  great  class  of  actions 
under  the  authority  of  the  new  court.  Even  if  there  were 
doubt,  the  true  course  would  be  to  hold  that  the  whole  class  was 
intended  to  go  to  one  tribunal  rather  than  to  so  hold  as  to  create 
confusion  by  dividing  the  class  and  distributing  its  members. 
The  class,  whatever  may  be  the  value  of  the  specific  personal 
property  in  dispute,  belongs,  without  division,  to  the  Appellate 
Court.  Possibly  some  element  may  be  added  which  will  create 
an  exception,  but  it  is,  at  all  events,  quite  clear  that  the  ex- 
ceptions to  the  general  rule  will  be  very  rare,  if,  indeed,  there 
can  be  any,  in  a  case  where  the  recovery  of  specific  personal 
property  is  sought. 

§  66.  Value  of  Property  in  controversy  not  material— The  lan- 
guage employed  in  designating  the  class  of  cases  under  im- 
mediate consideration  (the  fourth  class)  is  very  broad  and 
comprehensive  ;  there  is  neither  limitation  nor  exception.  No 
restriction  is  expressed  or  implied,  for  "  all  actions  for  the  re- 
covery of  specific  personal  property"  are  declared  to  be  within 

said,    that    there    is    everywhere   mani-  l  Hall  v.  Durham,   113  Ind. 327;    Ex 

fested  a  purpose  to  make  the  question  parte  Sweeney,  1:6  Ind.  5S3.     See,  gen- 

of  title  the  paramount  one  wherever  it  erallv,  Entsminger  v.  Jackson.  73  Ind. 

is   appropriately  and   rightfully   put  in  144;   Kramer  v.  Matthews,  68  Ind.  172; 

issue.     In  this  there  is  almost  universal  Pacey  :•.  Powell.  97  Ind.  371. 

concurrence  of  opinion  no  matter  from  'Payne    v.  June.  92    Ind.   252;     Mc- 

what  side  the  question  is  approached.  Faden  :•.  Fritz,  no  Ind.  1. 


54  !  A.TE    PROCEDURE. 

the  jurisdiction  of  the  Appellate  Court.  It  is,  therefore,  im- 
material what  the  value  of  the  property  in  dispute  may  be,  or 
whether  the  question  of  ownership  is,  oris  not,  involved.  Nor 
is  it  matt-rial  what  the  amount  of  damages  may  be,  for  irre- 
spective of  the  element  of  damages  the  jurisdiction  is  in  the 
new  tribunal  if  the  action  is  for  the  recovery  of  specific  personal 
property.  This  is  so  for  the  reason  that  the  paramount  issue  is 
that  of  the  right  to  the  ownership  or  to  the  possession  of  the 
specific  personal  property,  and  damages,  whatever  their  amount, 
constitute  a  mere  incident  of  the  principal  issue.1 

§67.    Exceptional  cases  involving  title  to  Personal  Property — The 

fact  that  the  title  to  personal  property  or  the  right  to  its  posses- 
sion may  collaterally,  or  incidentally,  be  brought  in  controversy 
will  not  determine  the  question  of  jurisdiction  irrespective  of  the 
amount  in  dispute  between  the  parties.  The  language  employed 
con  tines  the  fourth  class  to  actions  where  the  recovery  of  spe- 
cific  personal  property  is  the  dominating  element.  Cases  of 
trespass  or  trover,  as  well  as  other  actions  where  the  recovery 
sought  is  money,  and  not  specific  personal  property,  are  not 
members  of  the  fourth  class.  The  members  of  the  fourth  class 
are  cases  which  are  ordinarily  classified  as  actions  of  replevin  ; 
and  actions  for  damages,  although  title  to  personal  property 
may  be  collaterally  or  incidentally  involved,  are  members  of  an 
entirely  different  class.2 

§  68  Actions  between  Landlord  and  Tenant — The  fifth  class  of 
cases  distributed  to  the  Appellate  Court  is  designated  as 
"  actions  between  landlord  and  tenant  for  the  recovery  of  the 

1  Williams  v.  West,  2  Ohio  St.  82, 86;  erty  as  damages.     Hill  v.  Haverstick, 

White  - .  Van  I  louten,  51  Mo.  577:  Ho-  17  Ind.  517;  Chissom  v.  Lamcool.  <>  [nd. 

henthal  v.  Watson,  jS  Mo. 360;   Herze-  530,  533;    Jones  v.  Dowle,  9  M.  &  W. 

berg  60  Md.  1.26;   Rodmans.  [9;  Sayward  v.   Warren,  27   Me.  453; 

Nathan,  45  Mich.  607,  8   N.  W.  R.  562;  Allen    v.  Crarv,   10  Wend.  349;    Cary 

Walls  v.  Johnson,  16  Ind.  374;   Morgan  v.    Hotaling,    1     Hill,   311;     Drak<     v, 

molds,  1   Mont.  103.  Wakefield,  n  How.  Pr.  R.  106;   Ward 

1  A  special  difficulty  may  arise  where  v.  Woodburne,  27  Barb.  346,  353;   Van 

the  value  of  the  property  exceeds  one  Neste  v.  Conover,  5   How.  Pr.  R.  (O. 

thousand  dollars,  and  it  is  nol  delivered  S.)  14S;   Pugh  v.  Colloway,  10  Ohio  St. 

to  the  plaintiff.     In  such  a  case  it  seems  4SS;  Cook  v.  Hamilton,  67  Iowa,  394. 
lie  may  recover  the  value  of  the  prop- 


THE   APPELLATE  COURT.  55 

possession  of  the  leased  premises."  If  a  mere  superficial  view 
of  the  language  of  the  statute  were  taken  to  the  exclusion  of  all 
other  considerations,  it  might  seem  that  the  statute  admits  of  no 
exceptions,  but  this  view  can  not  be  adopted  without  violating 
settled  principles.  The  familiar  rule  is  that  a  statute  is  not  to  be 
construed  as  if  it  stood  alone,  but  settled  principles  must 
be  invoked  and  applied  in  giving  it  a  construction.  A  statute 
must  take  its  place  in  a  great  system  and  can  not  be  considered 
as  in  itself  embodying  all  the  law,  written  and  unwritten,  upon 
a  broad  subject.  This  rule,  taken  in  conjunction  with  the  rules 
and  principles  which  we  have  heretofore  discussed,1  and  the 
considerations  suggested  in  the  next  paragraph,  leads  to  the 
conclusion  that  there  is  at  least  one  well  marked  and  clearly 
defined  exception  to  the  rule  expressed  in  the  general  words  em- 
ployed in  the  statute,  and  that  exception  is  a  case  where  the 
title  to  land  is  appropriately  put  in  issue  by  a  party  who  has  a 
right  to  put  it  in  issue.  All  the  cases,  as  we  have  seen,  con- 
verge and  harmonize  upon  the  rule  that  where  title  to  land  is 
rightfully  made  an  issue,  it  is  the  dominating  one  to  which 
all  incidents  must  yield.  There  are,  of  course,  not  many  cases 
of  the  character  indicated  by  the  language  of  the  statute  in 
which  title  can  rightfully  be  put  in  issue. 

§  69.  Rule  where  Title  is  put  in  issue — The  words  of  the  statute, 
when  analyzed  and  closelv  studied,  will  be  found  to  clearly 
imply  that  the  relation  of  landlord  and  tenant  must  exist,  for 
unless  it  does  exist  the  action  is  not  between  landlord  and 
tenant.  If  the  landlord  has,  subsequent  to  the  creation  of  the 
tenancy,  divested  himself  of  that  title,  the  relation  of  landlord 
and  tenant  ceases,  and  a  new  and  different  relation  comes  into 
existence.2  Where,  therefore,  the  case  is  one  in  which  a  per- 
son who  originally  entered  as  tenant  may  show  a  cessation  or 
determination  of  the  lessor's  title,  and  he  does  show  it  in  the 
mode  provided  by  law,  he  necessarily  shows  that  the  action  is 
not  one  between  landlord  and  tenant,  but  is  one  between  parties 

1  We  have  ijjiven   reasons,  and  cited         *  Ante.  §§40.  51.  52. 
authorities,  for   our  conclusion  at  an- 
other place.     Ante,  §§  40.  51,  ;:. 


;,,;  APPELLATE   PROCEDURE. 

occupying  an  entirely  different  relation.  Thus,  if  it  be  shown 
that  the  party  who  entered  as  a  tenant  subsequently  purchased 
the  land  directly  from  the  person  under  whom  he  entered,  or  at 
a  judicial  sale,  it  is  evident  that  the  original  relation  is  changed 
into  a  radically  different  one.1  If  such  a  showing  is  made,  the 
'main  and  influential  question  becomes  one  of  title  in  the  strict 
sense  of  the  term.  The  words,  "  possession  of  the  leased 
premises,"  carry  out  the  meaning  we  have  ascribed  to  the  other 
words  of  the  statute,  for  they  imply  that  there  must  be  property 
held  by  one  party  of  the  other  under  a  lease.  A  holding  under 
a  claim,  rightfully  and  appropriately  asserted,  other  than  that 
created  by  a  lease,  is  not,  it  is  hardly  necessary  to  say,  "the 
possession  of  leased  premises." 

§  70.  Decedents'  estates — Claims  against — The  sixth  class  of 
cases  which  the  statute  declares  shall  be  within  the  jurisdiction 
of  the  Appellate  Court  is  thus  designated  :  "All  cases  of  ap- 
peals from  orders  allowing  or  disallowing  claims  against  deced- 
ents' estates."  This  statutory  provision  is,  under  the  rule  that 
a  statute  is  to  be  considered  part  of  one  great  system,  to  be 
taken  in  connection  with  the  provisions  found  in  the  act  regu- 
lating the  settlement  of  decedents'  estates,  and  when  thus  taken 
there  can  be  no  difficulty  in  determining  the  character  of  the 
cases  which  form  the  class.  The  allowance  or  disallowance  of 
claims  implies  that  there  is  a  claim  by  a  creditor,  and  proceed- 
ings incidental  to  the  main  case  go  where  the  main  case  goes. 
The  provision  quoted  does  not,  however,  carry  to  the  Appellate 
Court  general  probate  matters,  as  cases  involving  the  appoint- 
ment or  removal  of  executors  or  administrators,  cases  involv- 
ing the  construction  of  wills,  cases  involving  the  rights  of  heirs, 
devisees,  or  legatees,  cases  involving  the  right  to  sell  real  es- 

Rhyne  v.  Guevara,  67   Mi^s.  139;  6  these  authorities  show,  as  also  do  those 

So.  Rep. 736;    Allen  v.  Griffin,  98  N.  C.  elsewhere  cited,  the  person  who  origin- 

120;    Sharpe    v.    Kelly,  5    Denio,  431;  ally  entered  as  tenanl  may,  upon  a  due 

Stoddard  i>.  Emery,  12S  Pa.  St.  436,  18  and  sufficient  showing,  make  a  question 

R.  139;    Hopcraft  v.  Keys,  9  Bing.  of  title  destructive  of  the  relation  of 

Mackenzie,  1    Man.  &  landlord  and  tenant,  and  thus  show  that 

G.   143;     Nellis   v.  Lathrop,  22   Wend,  he  is  not  in  possession  of  "  leased  prem- 

121;    Tilghman    v.   Little,   13    111.  239;  ises,"  but  is  in  possession  of  premises 

Farris    v.   Houston,    74    Ala.  162.     As  of  which  he  is  the  owner. 


THE  APPELLATE  COURT.  57 

tate,  or  the  like.1  All  such  cases  remain  within  the  jurisdiction 
of  the  Supreme  Court  by  force  of  the  rule  that  what  of  appel- 
late jurisdiction  is  not  taken  from  that  court  continues  there. 

§  71.  Rules  of  Practice — The  rules  and  practice  of  the  Su- 
preme Court  govern  the  Appellate  Court,  and  the  statutory 
provisions  concerning  appeals  as  well  as  the  rules  and  decis- 
ions of  the  Supreme  Court,  must  be  looked  to  for  the  rules  of 
procedure.  The  evident  purpose  of  the  legislature  was  to  pre- 
vent conflict  between  the  decisions  and  the  practice  of  the  two 
appellate  tribunals.  But,  while  the  statute  in  terms  provides 
that  the  rules  of  the  Supreme  Court  shall  govern,2  still,  this 
provision  must,  we  suppose,  be  understood  to  mean  that  only 
the  general  rules  govern,  for  the  Appellate  Court  must  have 
power,  in  virtue  of  its  existence  as  a  court  of  high  rank,  to 
regulate  mere  matters  of  detail  as  the  time  of  its  sittings  and 
adjournments,  the  course  of  argument  and  matters  of  a  similar 
nature.3 


§  72.  Supreme  Court  Decisions  Control — It  is  provided  in  section 
25  of  the  act  creating  the  Appellate  Court,  that  it  "  shall  be 
governed  in  all  things  by  the  law  as  declared  by  the  Supreme 
Court  of  this  State,  and  that  it  shall  not,  directly  or  by  impli- 
cation, reverse  or  modify  any  decision  of  the  Supreme  Court  of 
the  State."  This  is  apparently  an  emphatic  and  explicit 
declaration,  but  in  reality  it  adds  nothing  to  the  law.4  As  we 
have  already  shown,  the  element  of  sovereignty  known  as  the 
judicial  must,  of  necessity,  reside  in  its  highest  form  in  some 
judicial  tribunal.  It  is  no  more  possible  that  there  can  be  two 
courts  possessing  the  highest  judicial  power  than  that  there  can 
be  two  Governors,  or  two  General  Assemblies.5  The  sphere 
of  the  highest  office,  body  or  tribunal  invested  with  an  element, 
or  department  of  sovereign  power  is  exclusive. 


Ex  parte  Sweeney.  126  Ind.  583.  *  Julian   v,  Beal,  34  Ind.  371;    Leard 

1  Act  February  28,  1891,  §§  12,  15.  25;  v.  Leard,  30  Ind.  171. 

Acts  1S91.  p.  39.  5  Field  .,_  The  pe0piei   ,  Scam.  (111.) 

3  Dodge  v.  Cole,  97  111.  338.  79. 


58  APPELLATE    PROCEDURE. 

§  73.  Transfer  of  Cases-  The  act  creating  the  Appellate  Court 
requires  that  transfers  of  cases  shall  be  made  from  one  of  the 
appellate  tribunals  to  the  other,  and  this  provision  is  valid. 
Long  recognition  of  the  power  of  the  General  Assembly  to 
transfer  causes  from  one  court  to  another  would  go  very  far  to 
support  the  conclusion  that  the  constitution  grants  this  power 
even  if  the  question  were  a  doubtful  one,  for  practical  exposition 
is  an  important  factor  in  the  construction  of  constitutions  or 
statutes.1  Statutes  have  been  enacted  in  this  State  transferring 
cases  from  one  tribunal  to  another,  as  from  the  old  common 
pleas  to  the  circuit  court ;  from  the  circuit  to  the  criminal  court, 
and  from  the  circuit  to  the  superior  court,  and  neither  from  the 
bench  nor  from  the  bar  has  there  been  a  suggestion  that  these 
enactments  were  invalid.  The  recent  decisions  made  by  the 
Supreme  Court  directing  the  transfer  of  cases,  although  no  ex- 
press statement  is  made  upon  the  subject,  fully  recognize  the 
validitv  of  the  provisions  of  the  act  respecting  the  transfer  of 
cases.2  It  is  evident  that  the  question  affects  the  remedy  and 
not  the  substantive  right,  so  that  it  seems  very  clear  that  it  is 
within  the  power  of  the  legislature  to  substitute  one  tribunal  for 
another,''  provided,  of  course,  that  no  constitutional  right  or 
power  is  taken  from  a  constitutional  tribunal,  and  citizens  are 
not  deprived  of  a  right  to  a  decision  by  a  court  created  under 
valid  laws. 

§  74.   Disqualification  of  one  Judge — Jurisdiction  not  ousted — A 

transfer  from  the  docket  of  the  Appellate  Court  to  that  of  the 
Supreme  Court  mav  be  ordered  where  there  is  one  disqualified 
judge  and  the  remaining  four  judges  divide  equally.  The  pro- 
visions concerning  the  course  to  be  pursued  where  one  judge  is 

1  Hoveyw.  State,  119  Ind.  386;  Weav-  inson,  5  Nev.   15;  Pike  v.  Megoun,  -14 

er  ii.  Templin,  [13  [nd.  298,301 ;   Board  M0.491;   People  v.  Board,  100  111.  .495; 

of    Com            Bunting,    in    Ind.    143;  State  -■■  French,  2   Pinner  (Wis.),  181. 

Schuyler,  |  Gilm.  (111.)  221;  2  This  general,  doctrine  is  affirmed  by 

Rogers  1  .Goodwin,  2  Mass.  \~^:  Stuart  the  Supreme  Court  of  Illinois.    Young 

Laird,    1    Cranch,    299;     Martin    v.  v.  Stearns,  91   111.  221;    Fleischman  v. 

Hunter,  1                          Cohens  v.  Vir-  Walker,  91    111.  318;    Meeks  v.  Leach, 

ginia,  6  Wheat.  264;    Ogden   v.  Saund-  91   111.  323;   Millard  v.  Board,  116  111. 

ers,      12     Wheat.    213,     290;       Minor     V.  23. 

Happersett,  21  Wall.  162;  State:.  Park-  3  Cooley'e  Const.  Lim.  (6th  cd.),  112. 


THE  APPELLATE  COURT. 

disqualified  are  not  so  clear  as  might  be  desired,  but  it  has  been 
held  that  where  there  are  four  judges  capable  of  acting  and 
there  is  not  a  tie,  the  case  remains  in  the  Appellate  Court.1 
Any  other  conclusion  would  imply  that  the  General  Assembly 
meant  to  declare  that  the  one  interested  judge  would,  or.  at 
at  least,  might,  unduly  influence  the  other  four,  and  such  an 
implication  ought  not  to  be  made. 

1  City   of  Hammond    v.  New  York,  etc..  126  Ind.  597;   Benedict  v.   Farlow. 
1  Ind.  App.  Ct.  160. 


CHAPTER  V. 


WHAT  MAY    BE   APPEALED   FROM. 


§  75.    Appeal — Right  of. 

76.  Appeal  is  part  of  the  remedy. 

77.  Appellate  Jurisdiction  conferred 

by  law. 

7s.    Only  judicial   questions   consid- 
ered on  appeal. 

79.    Appeals  lie    from  judgments  or 
decrees  only. 
Appeals  lie  only  from  final  judg- 
ment!— General  rule. 

81.    What  is  a  final  judgment. 

Sj.    Difference  between  intermediate 
decisions  and  final  judgments. 

83.  Final  judgment  disposes  of  entire 

case. 

84.  Objecl  and  scope  of  the  rule. 

85.  Requisites  of  a  final  judgment. 

86.  1  Hstinct  actions. 

Appeal  from  judgment  of  review. 

88.  Order  setting  aside  execution. 

89.  Removal  of  case  to  Federal  Court. 
Material    issues    musl    be  deter- 
mined. 

Rights  of  all  parties  must  he  ad- 
judicated. 

92.  Judgment   may  he  final,  although 

:  der  may  he  required  tor  its 
enforcement. 

93.  Decree  in  partition  proceeding. 

94.  Form  of  judgment  not  important. 


§  95.    Independent   i-sues  not  all 
all  parties. 

96.  Record  must  show  final  judg- 
ment. 

07.  Limitation  of  appeals  to  desig- 
nated clashes  of  cases  controls 
jurisdiction. 

98.    Distinct  ami  independent  claims. 

(/j.  Appeal  of  part  of  a  cause — Ex- 
ceptional cases. 

100.  Interlocutory  order  appointing  a 

receiver. 

101.  Interlocutory  order   for  payment 

of  money. 
[02.    Order   directing    execution    of  a 
written  instrument. 

103.  Order  requiring  delivery  of  prop- 

erty. 

104.  Order  requiring  assignment  ofin- 

struments. 

105.  Order  compelling  execution  of  in- 

strument ot"  writing. 

106.  Order  -ranting  or  denying  an  in- 

junction. 

107.  Interlocutory    order    in    Habeas 

Corpus  proceedings. 

108.  Effect  ot'  appeal  from  an    inter- 

locutory order. 

nil).    Mode   of  appealing   from    inter- 
locutory orders. 

no.    Void  judgments — Appeals  from. 


S  7-k  Appeal — Right  of— An  appeal  is  the  only  mode  provided 
by  out-  laws  tor  removing  a  case  from  an  inferior  tribunal  to 
one  of  appellate  jurisdiction.  Appeals  are  allowed  in  all  cases 
where  a  judicial  decision  is  sought  to  be  brought  before  the 
court  of  last  resort  for  review.     In  this  State  we  have  no  writs. 

(60) 


WHAT   MAY   BE   APPEALED   FROM.  61 

of  error.  It  is  laid  down  by  the  authorities  that  the  right  of 
appeal  is  purely  a  statutory  one  and  this  is  undoubtedly  the 
general  rule.1  A  party  who  brings  an  action  does  not  by  such 
an  act  acquire  a  vested  right  to  a  decision  from  a  particular 
tribunal.2  .  This  rule  is  no  more  than  an  extension  of  the  gen- 
eral principle  that  there  is  no  vested  right  in  a  remedy.3  The 
rule  is  illustrated  in  the  numerous  cases  which  hold  that  matters 
of  procedure  are  governed  by  the  law  in  force  at  the  time  the 
remedy  prescribed  is  administered.4 

§  76.  Appeal  is  part  of  the  Remedy — The  principle  that  an  ap- 
peal is  part  of  the  remedy  and  that  the  legislative  authority 
over  remedies  is  very  comprehensive  leads  to  the  conclusion 
that,  as  a  general  rule,  only  such  judgments  can  be  appealed 
from  as  are  designated,  expressly  or  impliedly,  by  a  statute 
authorizing  appeals.  It  leads,  also,  to  the  further  conclusion 
that  the  appeal  must  be  taken  in  the  time  and  mode  prescribed 
by  statute.  Parties  can  not  by  their  own  acts  appeal  in  a  case 
where  no  appeal  is  authorized  by  law,  nor  can  they  get  a  case 
into  an  appellate  court  in  an  unauthorized  mode. ' 

1  Ex  parte  McCardle,  7  Wall.  506;  Butler  v.  Palmer,  1  Hill,  324;  Cowgill 
State  v.  Slevin,  16  Mo.  App.  541;  Kun-  -•.  Long,  15  111.  202;  Miller  v.  Graham, 
dinger  v.  Saginaw,  59  Mich.  355,  26  N.  17  Ohio  St.  1;  State  v.  Squires,  26  la. 
W.  Rep.  634;    City  of  Minneapolis  v.  340. 

Wilkin,    30    Minn.    140;     La  Croix    v.  3  Mayne  v.  Board  of  Commissioners. 

Commissioners,  50  Conn.  321;   State  v.  123I1KL 132;  Uwchlan T,j; Road,  30  Pa. 

Meeker,  19  Neb.  444;   Wilcox  v.  Saund-  St.  157;    Stephenson  :•.  Doe,  S  Blackf. 

ers,  4    Neb.    569;    State   v.    Ensign.    11  508. 

Neb.  529,  531;  St.  Louis,  etc.,  Cat'.  Lux,  *  Watson    v.    Mercer,  S    Peters,   S8; 

63  111.  523;  Huntingdon  County  v.  Kauf-  Mather  v.  Chapman,  6  Conn.  54;  Peo- 

man   (Pa.),  17    Atl.  R.  595;     Matter  of  pie  v.  Supervisors,    20   Mich.  95;     Mc- 

State  Reservation,  102  N.  Y.  734;  Nor-  Lane    v.    Bonn,    70  la.    752;     Bat 

folk  Southern  R. Co.  v.Elly, 95  N.C. 77;  Sheets,   64    Ind.    209;     Moss    v.  State. 

Appeal  of  Houghton,  42  Cal.  35;  Law-  101    Ind.  321;    Knoup  v.  Piqua  Bank, 

renceburgh,   etc.,   Co.  v.  Smith,  3  Ind.  1  Ohio  St.  603.     See,  generally,  Gorlev 

253;    Sims  v.  Hines,  121   Ind.  534,  537.  v.  Sewell,   77   Ind.  316;     Mulcahey    v. 

In  Ex  parte  McCardle,  supra,  the  Su-  Givens,  115  Ind.  286. 

preme  Court  of  the  United  States  held  6  McNay    v.    Startton,    109    111.    30; 

that  the  repeal  of  a  statute  creating  the  Ladow  v.  Groom,  1  Denio,  429;    Florv 

right  of  appeal  destroyed  the  right,  and  v.  Wilson,  83   Ind.  391;     Wait    v.  Van 

that  an  appeal,    although  taken  before  Allen,    22  N.  Y.    319;     Westmoreland 

the  repeal,  could  not  be  maintained.  Co.  v.  Overseers  of  Conemaugh  Tp.,  34 

2  Bacon  v.  Callender,   6   Mass.   303;  Pa.  St.  232;  Moore  v.  Ellis,  iS  Mich.  77. 
Patterson  v.    Philbrook.   q    Mass.    151; 


A.PPELLA  IT.    PR<  K  EDI   RE. 

7.  Appellate  Jurisdiction  conferred  by  law — As  jurisdiction 
ppeals  is  created  by  law,  it  is  evident  that  parties  can  not, 
by  their  own  acts,  create  a  right  of  appeal.  To  permit  parties 
to  create  such  a  right  would  be  to  allow  a  violation  of  the  rule 
to  which  we  have  often  referred,  that  parties  can  not  confer  ju- 
risdiction of  the  subject  by  consent.1  It  may,  however,  be  well 
to  observe  in  passing,  although  somewhat  aside  from  our  main 
topic,  that  a  mere  irregularity  in  taking  an  appeal  may  be 
waived.2 

^  78.  Only  Judicial  Questions  considered  on  Appeal — In  another 
place  we  have  shown  that  only  judicial  powers  can  be  conferred 
upon  the  courts.3  An  appellate  court  can  not,  therefore,  be 
required  or  empowered  to  entertain  jurisdiction  of  any  other 
controversies  than  those  involving  judicial  questions.  To 
authorize  an  appeal  there  must  be  a  decision  by  a  court,  or  by 
some  judicial  tribunal.  Appeals  will  not  lie  from  decisions  upon 
ministerial,  legislative  or  executive  questions.4  That  there  can 
be  no  appeal  to  a  court  except  in  cases  where  judicial  questions 
are  involved  is  well  settled,  but  it  is  difficult,  in  some  instances, 
to  determine  what  are  judicial  questions.  In  many  instances 
questions  of  a  judicial  nature  are  committed  to  quasi  judicial 
tribunals,  and  in  such  cases  there  is  often  difficulty  in  determin- 
ing whether  an  appeal  will  lie.5     It  may  be  said  with  safety  that 

1  Sampson  v.  Welsh,  24  How.  (U.  S.)  Oregon,  244,  19  Pac.  R.  S6;  Mohney  v. 
207;    Mills  v.  Brown,  16  Peters,  425.  Redbank    Township  (Pa.),   15  Atl.  R. 

2  Dowell  :•.  Caruthers,  26  Kan.  720.        891. 

8  Appellate  Tribunals,  Chapter  I.  5  The  general  rule  probably  is    that 

4  Farley  v.  Board  of  Commissioners,  no  appeal  will  lie.     Board   v.  Smith,  40 

126  [nd.  468,  S.C.  26  N.  E.  R.  174;  Bun-  Ind.  61;    Bosley  v.  Ackelmire,  39  Ind. 

nellr.  Board,  124  Ind.  1;  Welch  t'.Bow-  3S6;  Cole  v.  Howard,  56  Ind.  330;   Al- 

man.  103  Ind.  252.  2  \.  K.  K.  722;  Platter  len    r\   Ilostetter,   16  Ind.  15;    City  of 

v.  Board,  103  Ind.  360,  374;   Waller  :■.  Peru  v.  Beares,  55  Ind.  576;  Windman 

Wood,  101   hid.  13S;   O'Boyle  v.  Shan-  v.    City    of    Vincennes,    58    Ind.    4S0; 

non,  80  tnd,  159;  City  of  Terre   Haute  Trustees  of  the  Town  of  Princeton  v. 

I    ire   Haute,  etc.,  Co.,  94  Ind.  305;  Manck,  5$  Ind.  51;  Church  v.  Town  of 

Crow  v.  Board  of  Commissioners,  118  Knightstown,  35  Ind.  177.     Thestatute 

Ind.  51;     Hanna  v.  Board,  29  Ind.  170;  may,  however,   make  questions  of  the 

Pittsburgh,  etc.,  Co.  v.  Board,  etc.,  28  general  character  referred  to   judicial, 

^  •  Va,  264;    A 1  l'ii  :  .  Cerro  Gordo  Co.,  and  granl  an  appeal  from   the  decision 

;i   Iowa,  54;    Colvig  v.  Klamath  Co.,  16  of  the   interior   tribunal   and   thence  to 


WHAT   MAY    BE   APPEALED   FROM. 

where  a  discretionary  power  is  conferred  upon  an  officer  or 
tribunal  the  general  rule  is  that  no  appeal  can  be  taken  from  a 
decision  made  by  such  an  officer  or  tribunal.1 

§  79.  Appeals  lie  from  Judgments  or  Decrees  only — The  rule  that 
where  the  trial  court  has  no  jurisdiction  the  appellate  tribunal 
has  none,  requires  that  the  question  in  the  former  court  should 
be  essentially  a  judicial  one.  The  inquiry  is  usually  whether 
the  nature  of  the  case  as  it  existed  in  the  trial  court  was  such 
as  to  call  into  exercise  the  judicial  power.  The  fact  that  the 
case  comes  to  the  Supreme  Court  or  to  the  Appellate  Court, 
from  a  court  of  general  jurisdiction,  such  as  a  circuit  court,  a 
criminal  court,  or  a  superior  court,  does  not,  as  the  authorities 
heretofore  cited  show,  necessarily  establish  jurisdiction.  The 
judicial  power  must  be  exercised,  or  its  exercise  rightfully  de- 
manded and  refused,  in  the  court  of  original  jurisdiction,  or 
there  can  be  no  judgment  from  which  an  appeal  can  be  prose- 
cuted. Where  there  is  no  judicial  question  to  decide  there  can 
be  no  judgment,  and  it  is  only  from  judgments,  using  the  term 
"judgments  "  in  a  broad  sense,  that  our  laws  authorize  an  ap- 
peal. If  our  conclusion  is  incorrect  then  there  is  no  virtue  in 
the  ancient  rule  that  a  party  must  have  his  day  in  court,  for  this 
rule  applies  only  in  cases  where  a  decision  of  a  judicial  nature 
is  required,  as  purely  and  exclusively  legislative  or  ministerial 
questions  may,  as  is  well  known,  be  decided  without  notice, 
although  it  is  otherwise  where  a  judicial  decision  is  to  be  given. 

§  80    Appeals  lie  only  from  Final  Judgments — General  rule — To 

authorize  an  appeal  there  must  be  a  judgment.2  As  a  general 
rule  appeals  will  lie  only  from  final  judgments,3  but  to  this  gen- 

the  Supreme  Court,  as  has  been  done  2  Dale  v.  Copple,  53   Mo.  321;  Jones 

in    street  assessment   cases    and   other  v.   Snodgrass,   54    Mo.   598;   Wilson   v. 

cases  of  a  similar  character.  Hulz,  61  Mo. 445;    Western  Union  Tel. 

1  Weaver  v.  Templin,   113  Ind.  29S;  Co.  v.  Locke,  107  Ind.  9;   Powell  Ap- 

Kirkpatrick   v.  Taylor,    118   Ind.   320;  pellate  Proceedings,  367. 

Leeds  :•.  City  of  Richmond,   102  Ind.  3  Miller  v.  State,  S  Ind.  325;  Rei 

372;    Smith   v.  Corporation  of  Wash-  State,  8  Ind.  416;   Ham  rick  v.  The  Dan- 

ington,  20  How.  135;   Davis  v.  Mayor,  ville, etc.,  Co.,  30  Ind.  147;  State  v.  Ely, 

1  Duer,  151;  Piatt  v.  Chicago,  etc.,  Co.,  11    Ind.   313;    Northcutt  v.  Buckles,  60 

74  Iowa.  127.  S.  C.  37    X.  W.  Rep.  107.  linl.  577;   Goodwin  ;•.  Goodwin.  4S  Ind. 


64  APPELLATE   PROCEDURE. 

era]  rule  there  are  exceptions  which  will  be  presently  noticed. 
The  rule  restricting  appeals  to  cases  where  a  final  judgment 
has  been  rendered  is  necessary  to  prevent  the  division  of  a  case 
into  parts  and  to  prevent  a  multiplicity  of  actions.1  The  rule 
is  in  strict  harmony  with  the  principle,  of  which  we  have  al- 
ready spoken,  that  cases  must  be  decided  as  an  entirety  and 
bv  one  tribunal. 

§  81.  What  is  a  Final  Judgment — It  is  not  always  easy  to  de- 
termine what  shall  be  considered  a  final  judgment,  and  it  will 
assist  in  clearing  away  difficulties  to  notice  orders  and  rulings 
which  are  declared  not  final  judgments  within  the  meaning  of 
the  law  governing  appeals.  A  ruling  upon  a  demurrer  to  a 
pleading,  whether  the  ruling  is  for  or  against  the  demurring 
party,  is  not  a  final  judgment.2  An  appeal  will  not  lie  from  a 
ruling  denying  a  motion  to  quash  an  indictment.'5  Stating  con-' 
elusions  of  law  upon  a  special  finding  does  not  constitute  a  final 
judgment,4  nor  is  a  ruling  .suppressing  a  deposition/'  Orders 
setting  aside  former  orders  are,  as  a  general  rule,  not  final 
judgments.6     Orders  admitting  or  refusing  to  admit  parties  can 


rv|.  Martindale  v.  Brown,  18  Ind.  2C4;  33;  Hilliard  New  Trials  (2d  ed.).  712; 
Thiebaud  v.  Dufour.  57  Ind.  598;  Reed  Powell  Appellate  Proceedings.  369. 
-  Reed,  44  Ind.  429:  Hamlyn  v.  N'es-  2  Slavic  v.  Bodmer,  58  Ind. 465;  New- 
bit,  37  Ind.  2S4;  Taylor  v.  Board  of  ell  v.Gatling,  7lnd.  147;  National  Bank- 
Commissioners  of  Jay  Co.,  120  Ind.  121;  ing,  etc.,  Co.  v.  Knaup,  55  Mo.  154; 
Stat.  v.  Spencer,  92  Ind.  115;  State  Rubey  v.  Shaw,  51  Mo.  116;  Griffee  v. 
v.  Evansville,  etc.,  Co.,  107  Ind.  581;  Mann,  62  Md.  248;  Kirchner  v.  Wood, 
Guardian  Savings    Bank    v.    Reilly,  8  4S  Mich.  199. 

Mo.    App.    544;     State    v.    Sutterfield,  3  Farrel  v.  State,  7   Ind.  345;   Pigg  v. 

-1     M<>.   391;    Hawkins    v.    Massie,  62  State,  9  Ind.  363;   Woolley   v.  State,  8 

Mo.  552;   McCullum   v.  Eager,  2  How.  Ind.  377. 

61;      Walker     v.     Spencer.    86    N.    Y.  4  Northcutt    v.  Buckles,  60  Ind.  577; 

162;     Piedmont    Manufacturing   Co.  f.  Johnson  v.  Northern,  etc.,  Co.,  39  Minn. 

Buxton,    105    V  C.  7).    11   S.  E.   Rep.  30,  38  N.  W.  Rep.  804. 

Home    for    Inebriates    v.    Kaplan  6  Reese  v.  Buck,  9  Ind.  238. 

-I  Pac.Rep.  no;  Davie  v.  Davie,  6  Wood  v.  Wood.  51   Ind.  141;  Mar- 

52  Ark.  221,  S.  C.  20  Am.  St.  R.  170  and  tiiulale  v.  Brown,  iS  Ind.  2S4.    See,  also, 

note  173;   In  re  Davis' Estate  (Mont.),  Spaulding  v.  Thompson,   12    Ind.  477; 

27  Pac.  Rep.  342.  Branham  r.Ft.  Wayne,  etc.,  R.  R.  Co., 

1  Western   Union  Tel.  Co.  v.  Locke.  7  Ind.  524. 
107    Ind.  9;  Freeman  on  Judgmenl 


WHAT   MAY    BE   APPEALED   FROM.  ,;- 

not  be  regarded  as  final  judgments  authorizing  an  appeal.1  An 
order  to  produce  papers  or  documents  is  not  final.2  The  weight 
of  authority  is  that  no  appeal  will  lie  from  an  order  dissolving 
or  refusing  to  dissolve  an  attachment,3  although  the  cases  are 
conflicting.  Orders  reforming  pleadings  and  orders  granting 
or  denying  a  continuance  are  not  final.1 

§  82.  Difference  between  intermediate  Decisions  and  Final  Judg- 
ments— Confusion  has  been  produced  in  some  cases  by  failing 
to  discriminate  between  rulings  that  may  be  made  available  on 
appeal  and  final  judgments  from  which  an  appeal  is  authorized. 
It  is  obvious  that  many  rulings  may,  when  duly  excepted  to, 
be  available  as  causes  for  a  reversal  of  the  judgment,  and  vet 
no  one  of  them,  nor  all  of  them  combined,  constitute  a  final 
judgment  within  the  meaning  of  the  law  governing  appellate 
jurisdiction  and  procedure.  Thus  a  ruling  denying  a  motion 
in  arrest  of  judgment  is  not  final,  although  it  may  constitute  the 
basis  of  a  specification  of  error.5  An  order  denying  a  motion 
presenting  a  jurisdictional  question  is  not  a  final  judgment,6 
nor  is  an  order  appointing  an  examiner  to  take  testimony,  al- 
though such  orders  may,  when  they  affect  the  rights  of  the  par- 
ties   injuriously,  and    when  presented   in   a   proper    mode,  be 


1  Lamon  v.  McKee,  7  Mackey,  447,  Freeman  (X.  D.),  46  N.  W.  Rep.  36. 
S.  C.  17  Wash.  Law.  Rep.  806;  In  re  See  post,  §  S8,  note  3.  Haebler  v. 
Ohm's  Estate,  S2  Cal.  160,22  Pac.  R.  Bernharth,  115  N.Y.459,  is  a  case  where 
927.  the  judgment  was  final  upon  the  attach- 

2  Western  Union  Tel.  Co.  v.  Locke,  ment,  as  it  was  in  favor  of  a  third  per- 
107  Ind.  9;    Cleveland,  etc.,  R.  R.  Co.  son. 

v.  Closser  ct  al.,   126  Ind.  34S;    Logan  *  Read  v.  Gooding,  20  Fla.  773;   Wil- 

v.  Pennsylvania  Co.,  132  Pa.  St.  403,  19  son  v.  City  of   Wheeling,    19  W.  Va. 

Atl.  Rep.  137.  323;    Carpenter  v.   Reynolds.   58  Wis. 

3  State  v.  Miller, 63  Ind.  475;  Abbott  666;  Wiggins  v.  McCoy,  S7  X.  C.  499. 
v.  Zeigler,  9  Ind.  511;  Forbes  ^.Porter,  5  People  v.  Toal  (Cal.).  23  Pac.  Rep. 
23  Fla.  47,  1  So.  Rep.  336;  Snavely  v.  203.  See,  generally.  Murphy  v.  King, 
Abbott  Buggy  Co.,  36  Kan.  106,  12  Pac.  6  Mon.  30,  9  Pac.  Rep.  585;  Davis  v. 
Rep.  522;  Simpson  v.  Kirschbaum,  43  Donner,  S2  Cal.  35,  22  Pac.  Rep.  S79. 
Kan.  36,  22  Pac.  Rep.  1018;  Duncan  v.  6  School  District  of  Adams  County 
Forgey,  25  Mo.  App.  310;  Contra,  v.  Cooper,  29  Xeb.  433,  S.  C.  45  X.  W. 
Quebec  Bank  v.  Carroll  (S.  D.),  44  X.  Rep.  61S. 

W.  Rep.  723;   Red  River,  etc.,  Bank  :■. 
5 


,;,;  APPELLATE   PROCEDURE. 

grounds  for  the  assignment  of  errors  on  appeal.1  An  order 
refusing  a  non-suit  or  an  order  refusing  to  dismiss  is  not  a  final 
judgment,  although,  if  erroneous,  the  error  may  be  made 
available.2  But  such  an  order  may  become  final  if  the  defend- 
ant stands  upon  his  motion  and  final  judgment  is  given  upon  it. 
Orders  of  reference  or  orders  regarding  the  mode  of  trial  are 
matters  on  which  specifications  of  error  may  be  ultimately 
founded, ;  but  they  are  not,  as  a  general  rule,  final  judgments.4 
An  order  declaring  a  recognizance  is  not,  it  has  been  held,  a 
final  judgment  authorizing  an  appeal.3 

§  83.  Final  Judgment  disposes  of  the  entire  case — No  order  is 
final  in  such  a  sense  as  to  constitute  a  final  judgment  unless  it 
disposes  of  the  main  case  so  far  as  there  is  power  in  the  trial 
court  to  decide  upon  the  questions  presented  by  the  issues,  no 
matter  how  clearly  and  decisively  the  order  may  indicate  what 
the  ultimate  judgment  will  be/'  Until  there  is  an  ultimate 
judgment  the  case  is  not  finally  disposed  of  inasmuch  as  the 
trial  court  may  change  its  rulings,  award  a  venire  de  novo, 
grant  a  new  trial,  or  make  some  such  order,  notwithstanding 

1  See,  genenillv,  Davie  v.  Davie,  52  the  ultimate  ruling  the  specification  of 
Ark.    224,    S.    C.   12   S.    W.    Rep.  55S;     error  must  be  made. 

Hilliard  v.  Oram,  106  X.  C.  467,  S.  C.  *  Schnitzius  v.  Bailey  (N.  J.),  iS  Atl. 

1  1  S.  E.  Rep.  514;   Woods  v.  Dickinson,  Rep.  192;   Kille  v.  Reading  Iron  Works 

7  Mackey,  301;   Blackwell  v.  McCaine,  (Pa.),   19   Atl.    Rep.    5  f 7 ;     Wallace  v. 

S.  C.  11    S.  E.  Rep.  360.  Douglas,  105  N.  C.  42;   Smith  r\  Thom- 

2  Witkowski  v.  Hern,  82  Cal.  604,  23  ason,   26   So.   Car.   607;     Lowndes   v. 

152;   Simpson  v.  Kirchbaum,  Miller,    25    So.   Car.    119;    Conant    v. 

43  Kan.  36;    Simpson  v.  Rothschild,  43  Riseborough,  30  111.  App.  49S. 
Kan.  53,  22  Pac.  Rep.  1019;     Grimes  v.         5  People  v.  Stimer  (Mich.),  46  N.  W. 

ibcrlain,  S.C.27  \.  k<"S.  1  ;  WW.  Rep.  28. 
Rep.  395.    See,  generally,  List  v.  Jock-        6  Gilpatrick  v.  Glidden,  82   Me.  201, 

heck    Kan.),  27  Pac.  Rep.  [84;  Clark  v.  19  Atl.  Rep.  166.     This  is  really  noth- 

.   \g  WW.  Rep.  374:   Sand-  ing  more  than  the  logical  expansion  of 

er,  etc.,  Co.  v.  Yi    ler's    Estate     Wash.),  the  settled  general  rule  that  from  inter- 

27  Pac.  Rep.  269;     Gilmore  v.  Hani,  15  mediate  rulings  or  interlocutory  orders 

X.  V.  Supp.  391.  an    appeal    will    not    lie.     Johanru 

8  Wr  .In  mil  mean  to  be  understood  Young,  42  Wis.  401 ;  Joint  School  Dist. 

that  specifications  of  error  may  be  di-  v.  Kemen,  6S  Wis.  240;    Webster,   etc., 

rectly  made  upon  such   orders  or  rul-  Co.   v.   St.    Croix    Co.,    63   Wis.   647; 

,  for,  as  will  hereafter  be  shown,  the  Hoey  v.    Pierson,   67    Wis.    262,    267; 

orders  and  rulings  must  first  be  present-  Goldmark  v.  Rosenfeld,  69  Wis.  469. 
ed  to  the  trial  court  for  review,  and  upon 


WHAT  MAY  BE  APPEALED  FROM.  67 

the  fact  that  in  other  rulings  it  may  iiave  clearly  manifested  a 
purpose  to  carry  its  rulings  into  the  ultimate  judgment  or  de- 
cree. A  decretal  order  although  interlocutory  in  its  nature 
may,  of  course,  be  carried  forward  and  embodied  in  a  final 
decree  l  and  thus  become  an  essential  part  of  that  decree,  but 
until  it  is  so  embodied  in  the  final  decree  no  appeal  will  lie. 
The  rule  that  no  matter  how  decisive  may  seem  the  ruling  of 
the  trial  court  it  is  not  a  final  judgment,2  is  well  illustrated  by 
the  cases  in  which  rulings  were  made  denying  a  motion  for  a 
judgment  on  a  special  verdict  or  on  the  answers  of  a  jury  to 
special  interrogatories,3  for  such  a  ruling  is  seemingly  as  clearly 
indicative  of  what  the  final  judgment  will  be,  as  it  is  possible 
for  any  order  to  be,  except,  of  course,  the  ultimate  judgment 
itself. 

§  84.  Object  and  Scope  of  the  Rule — The  general  rule  that  ap- 
peals lie  only  from  final  judgments  is  so  essential  to  the  orderly 
administration  of  justice,  and  has  so  much  to  commend  it,  that 
it  is  with  reason  that  statutory  provisions  creating  exceptions 
are  construed  with  some  strictness.  The  doctrine  is  that  where 
a  general  rule  exists,  and  a  party  asserts  that  his  case  forms  an 
exception  to  the  rule,  he  must  show  substantial  grounds  for  his 

•Farmers    Loan    and    Trust    Co.   v.  verdict,  said:     "No   judgment    has    as 

Canada,  etc.,  R.  Co.,  127  Ind.  250.  jet  been  entered.     The  mere  fact  that 

2  It  is  questionable  whether  the  decis-  the  order  for  judgment  includes  an 
ion  in  the  case  of  Gruhl  v.  Gruhl,  123  order  denying  the  defendant's  motion 
Ind.  S6,  can  be  supported  upon  any  for  judgment,  does  not  make  the  order 
ground,  for  the  allowance  was  a  mere  appealable,  since  every  order  for  judg- 
incident  of  the  main  suit  for  divorce;  ment  wholly  in  favor  of  one  party  nec- 
but  if  the  decision  in  that  case  can  be  essailly  precludes  any  judgment  in 
upheld  upon  any  ground  it  must  be  favor  of  the  other  party.  In  other 
upon  the  ground  that  section  1042  of  words,  the  two  orders  mentioned  are 
the  statute,  by  reference  to  the  practice  together,  in  effect,  but  one  order  for 
in  suits  for  injunctions,  impliedly  an-  judgment  in  favor  of  the  plaintiff  and 
thorizes  an  appeal.  If  the  decision  can  against  the  defendant."  It  is  true,  we 
in  any  event  be  sustained  its  doctrine  may  say  in  passing,  that  the  Wisconsin 
should  be  limited  and  not  extended.  statute  is  different  from  ours,  but  the  rul- 

3  Murray  v.  Scribner,  70  Wis.  22S;  ing  principle  is  not  essentially  changed 
Treat  v.  Hiles,  75  Wis.  265.  In  the  by  the  difference  in  the  two  statutes. 
first  of  the  cases  cited  it  was  said  by  R.  S.  of  Wis.,  §  3069;  R.  S.  of  Ind. 
Cassoday,  J.,  in  speaking  of  the  ruling  1SS1,  §§  632,  646. 

on  a  motion  for  judgment  on  the  special 


GS 


APPELLATE   PROCEDURE. 


claim,  or  the  case  will  be  brought  under  the  rule.1  This  doc- 
trine is  applied  with  liberality  to  prevent  appeals  from  inter- 
mediate  rulings  or  interlocutor)'  orders,  for,  in  almost  every  form 
in  which  the  question  has  been  presented,  the  courts  have 
exhibited  their  reluctance  to  multiply  or  recognize  exceptions 
to  the  general  rule.2  One  who  asserts  that  his  case  constitutes 
an  exception  to  the  rule  must  be  prepared  to  show  a  solid  basis 
for  his  claim,  or  the  general  rule  will  be  preferred  to  the  ex- 
clusion of  his  claim.  The  object  of  the  rule  is  to  prevent  the 
multiplication  of  appeals,  and  to  require  parties  to  submit  a  case 
once  for  all.  Its  scope  is  comprehensive,  and  few  exceptions 
break  its  force  or  narrow  its  operation. 

^  85.  Requisites  of  a  Final  Judgment — A  judgment  may  be 
final  in  such  a  sense  as  to  authorize  an  appeal  although  it  may 
create  no  lien  and  may  be,  in  some  respects,  vague  and  uncer- 
tain, for  the  strict  rule  which  applies  where  the  question  is  as  to 
the  sufficiency  of  a  judgment  does  not  always  govern  where 


1  The  Indianapolis,  etc.,  Co.  v.  Wat- 
son, 114  Ind.  20. 

2  In  addition  to  the  authorities  already 
referred  to  upon  the  question  of  what 
are  interlocutory  orders  and  intermedi- 
ate rulings  from  which  an  appeal  will 
lie,  the  following  cases  may  be  cited, 
showing  what  orders  are  regarded  as 
interlocutory  or  intermediate:  A  de- 
cree that  does  not  settle  the  amount  of 
the  recovery.  I  lunter  v.  1  [unter,  100III. 
519;  Granl  v.  Phoenix  Ins.  Co.,  106  U. 
S.  (.29;  Burlington,  etc.,  Co.  v.  Sim- 
mons, 123  U.  S.  52;  Railroad  Co.  v. 
Swasey,  23  Wall.  405.  An  order  vacat- 

,1'  and  admitting  parties 
to  defend.  McCulloch  v.  Dodge,  8 
Kan.  .476;  Prentice  V.  Rice,  2  Dougl. 
(Mich.)  296;  ///  re  Studdart,  30  Minn. 
Owne  v.  Going,  7  Col.  85;  Young 
r\  Matthiesen,  etc.,  Co.,  105  111.  26;  but 
see  Morse  V.  Stockman.  6<;  Wis.  36. 
Admitting  or  refusing  to  admit  parties. 
Coburn  v  Smart,  53  Cal.  742;  State  :'. 
Parish  Judge,    27    La.  Ann.  184.     An 


order  respecting  a  guardian's  report  and 
directing  another  report.  Pfeiffer  v. 
Crane,  89  Ind.  485.  An  order  that  a 
bill  be  taken  pro  covfesso.  Russell  v. 
Lathrop,  122  Mass.  300.  An  order  to 
interplead.  Barth  v.  Rosenfield,  36 
Mil.  604.  Orders  respecting  time  of 
trial  and  place  on  calendar.  Morgan 
v.  Keenan,  27  So.  Car.  248,  3  S.  E. 
Rep.  297;  Shearouse  v.  Smith,  83  Ga. 
520,  11  S.  E.  Rep.  560.  An  order  dis- 
posing of  the  case  as  to  part  of  the 
issues  or  parties.  Liliensterne  v.  Lewis 
(Texas),  12  S.  W.  Rep.  750.  In  the 
following  cases  will  be  found  illustra- 
tions of  some  other  phases  of  the  sub- 
ject of  interlocutory  orders:  Hazelhurst 
v.  Morris.  2S  Md.  67;  Sellers  v.  Union 
Lumber  Co.,  36  Wis.  398;  Eastham  v. 
Sallis,  60  Tex.  576;  Macnevin  v.  Mac- 
nevin,  63  Cal.  186;  Low  v.  Crown 
Point,  etc.,  Co.,  2  Nev.  75;  Scott  v. 
Burton,  6  Tex.  322,  S.  C.  55  Am.  Dec. 
7S2;  Hawkins  v.  Massie,  62  Mo.  5S2. 


WHAT   MAY   BE   APPEALED   FROM.  69 

the  question  is  simply  as  to  the  right  to  appeal.  There  is  a 
distinction  between  the  two  classes  of  cases,  for  there  may  often 
be  an  appeal  from  an  order  so  defective  in  form  as  not  to  be 
sufficient  to  support  an  action  upon  it,  or  so  defective  as  not  to 
be  strong  enough  to  resist  a  direct  assault.  The  test,  to  out- 
line it  in  a  rough  way,  is  not  whether  the  order  will  support  a 
complaint  upon  it  as  a  judgment,  or  create  a  lien  or  resist  a  di- 
rect attack,  but  whether  it  puts  an  end  to  the  particular  case  as 
to  all  the  parties  and  all  the  issues.  As  illustrating  the  doctrine 
stated  may  be  taken  the  case  wherein  it  was  held  that  an  ap- 
peal will  lie  from  an  order  setting  aside  a  commissioner's  sale 
entered  upon  the  exceptions  of  the  purchaser.1  Of  the  cases 
out  of  the  usual  line,  but  illustrating  what  has  been  said,  may 
be  adduced  cases  such  as  those  wherein  an  order  is  made  dis- 
barring an  attorney,  discharging  a  guardian,  and  the  like.2 
Cases  of  the  class  represented  by  the  particular  instances  pro- 
ceed, as  a  rigid  analysis  will  disclose,  although  this  is  not  al- 
ways avowed,  upon  the  theory  that  the  order  or  judgment  puts 
an  end  to  the  whole  controversy  involved  in  the  particular  in- 
stance, although  it  does  not  adjudicate  upon  the  entire  subject 
in  such  a  manner  as  to  terminate  all  litigation  that  can  arise 
concerning  or  affecting  the  general  subject. 

§  86.  Distinct  Actions — A  complaint  for  a  new  trial  for  causes 
discovered  after  the  term  constitutes  the  foundation  of  a  new 
and  distinct  action,  as  is  held  b}'-  the  later  cases,  and  from  a 

1  Hollett  v.  Evans  et  a/.,  28  Ind.  61.  cases  is  that  as  long  as  the  estate  is 
An  appeal  will  lie  from  an  order  di-  open  there  is  no  appeal  from  interlocu- 
recting  an  execution  to  issue.  Entrop  tory  or  intermediate  orders.  Pfeiffer  :•. 
V.  Williams,  n  Minn.  381.  Crane.  89  Ind.  4S5;  Goodwin  :•.  Good- 

2  Order  disbarring  an  attorney.  Ex  win,  4S  Ind.  5S4;  Pate  v.  Moore.  79 
parte  Trippe,  66  Ind.  531.  Removal  of  Ind.  20;  Candy  v.  Hanmore,  76  Ind. 
aguardian.  Ward  v.  Angevine,  46  Ind.  125;  Sanders  :•.  Lov,  61  Ind.  29S;  Crav- 
415.  Order  regarding  custody  of  a  child,  ens  v.  Chambers,  55  Ind.  5;  Parsons:'. 
Henson  v.  Walts,  40  Ind.  170.  But  the  Milford,  67  Ind.  4S9;  Lang  :•.  The 
general  rule  respecting  guardianships,  State,  67  Ind.  577;  Heffner  v.  Day,  54 
decedents'  estates,  insolvents'  estates.  Ark.  79.  S.  C.  14S.W.  Rep.  1090.  Koran 
trust  estates  and  similar  matters,  is  that  example  of  a  final  judgment  in  the 

no  appeal  lies  from  an  order  approving  of  an  insolvent's  estate,  see,  Bradford 
a  current  account  or  report.  The  the-  :•.  Higgins  (Neb.),  47  X.  W.  Hep.  749. 
ory  generally  asserted  by  the  adjudged 


APPELLATE   PROCEDURE. 


judgment  in  such  an  action  an  appeal  will  lie.1  The  element 
which  gives  the  peculiar  character  to  the  class  of  cases  of  which 
are  speaking  is  that  which  marks  each  of  its  members  as  a 
distinct  and  independent  action,  for,  without  this  element,  such 
a  case  would  fall  within  the  ordinary  rule  which  treats  a  motion 
for  a  new  trial  as  an  incident  of  the  main  proceeding.  If  the 
motion  for  a  new  trial  is  no  more  than  an  incident,  then,  of 
course,  no  appeal  will  lie  from  the  isolated  ruling  upon  it,2  al- 
though questions  presented  by  it  will  be  considered  on  an  ap- 
peal from  the  final  judgment. 

§  87.  Appeal  from  a  judgment  of  Review — An  appeal  will  lie 
from  a  final  judgment  in  a  suit  to  review'  a  judgment.3  The  de- 
cisions which  declare  and  enforce  the  rule  we  have  just  stated 
impliedly  assert  the  doctrine  of  which  we  have  often  spoken, 
that  is,  that  a  judgment  which  puts  an  end  to  the  particular 
case  so  far  as  an  end  can  be  put  to  it  in  the  court  where  it 
is  pending  is  a  final  judgment  from  which  an  appeal  will  lie.4 


'  Hines  v.  Driver,  89  Ind.  339,  over- 
ruling House  v.  Wright,  22  Ind.  3S3; 
White  v.  Harvey.  23  Ind.  55.  and  citing, 

[Staining   the   rule,    the    cases    of 
McCall    v.   Hitchcock,    7    Bush.   (Kv. 
615;  Belt  v.  Davis.  1    Cal.  134;  Kee  v. 

•onald,  17  Ind.  518;  Glidewell  v. 
I  >  i^uy,  21  Ind  95;  Huntington  v.  Drake, 
j  I  [nd.347;  Houston  v.  Bruner,  39  Ind. 
376:  Sanders  :•.  Lov.  45  Ind.  229; 
Hiatt  v.  Ballinger,  59  Ind.  303;  Hill 
v.  Roach.  72  Ind.  57;  Kitch  v.  Otis.  79 
Ind.  96.  In  Harvey  v.  Fink,  in  Ind. 
249,  Hines  v.  Driver,  supra,  is  approved 
and  followed;  see,  also,  Hines  v.  Driver, 
100  Ind.  315,  316. 

.11    Ind.  313:    State  v. 

1    115;  Lawson  v.  Moore, 

44    Ala.   274;    Ex   part,    Sim-.   44   Ala. 

McDonough  v.  Nicholson,  46  M<>. 

Artman  v.  West  Point,  etc.,  Co., 
1''  Neb.  572;  Houston  v.  Starr.  12  Tex. 
424;  Tucker  :•.  Sandridge,  82  Va.  -32. 

3  Keeper  v.  Force,  S6  Ind.  Si;  Brown 
v.  Keyser,  53  Ind.  85.      See,  also.  Rich- 


ardson  v.  Honk.  45  Ind.  451;  Leech  v. 
Perry.  77  Ind.  _|22. 

*  In  Brown  v.  Keyser,  supra,  it  was 
said :  "A  judgment  for  o*-  against  a  re- 
view of  a  former  judgment  puts  an  end 
to  the  action  for  a  review.  If  the  judg- 
ment isagainsl  a  review,  the  whole  pro- 
ceedings are  at  end.  If  the  judgment 
is  for  the  review,  as  in  this  case,  the  ac- 
tion for  review  is  ended,  and  no  further 
proceedings  are  to  be  had  in  that  action. 
Any  further  proceedings  contemplated 
are  to  he  had  on  the  original  action  ami 
not  on  the  action  for  review."  The  ar- 
gument contained  in  the  extract  made 
from  the  opinion  in  Brown  :■.  Keyser. 
gives  support  to  the  decision  in  Hines 
-'.  Driver,  89  Ind.  339,  inasmuch  as  it 
may  be  justly  said  that  where  there  are 
further  proceedings  to  be  had  in  the 
event  that  a  new  trial  is  awarded,  they 
are  to  be  had  in  the  original  case,  and 
if  a  new  trial  i-  denied  the  original 
judgment  remains  undisturbed. 


WHAT  MAY   BE   APPEALED  FROM.  71 

But  where  the  judgment  sought  to  be  reviewed  is  one  from  which 
an  appeal  will  not  lie,  then  no  appeal  can  be  taken  from  the 
judgment  in  the  suit  for  review.1  This  ruling  is  right,  since  to 
hold  otherwise  wrould  be  to  affirm  that  what  a  party  can  not  do 
directly  he  may  do  by  indirection. 

§  88.  Order  setting  aside  an  Execution — An  order  refusing  to 
set  aside  an  execution  has  been  held  to  be  a  final  judgment 
from  which  an  appeal  may  be  taken.2  Where  the  only  issue  in 
the  case  is  as  to  the  right  to  have  an  execution  issued,  the  order 
refusing  to  direct  its  issue,  or  an  order  directing  it  to  issue,  may 
well  be  considered  a  final  judgment  for  the  reason  that  it  effec- 
tually puts  an  end  to  the  particular  case.  But  if  the  order  were 
merely  incident  to  other  proceedings  in  the  same  case,  requiring 
for  their  complete  determination  a  judgment  upon  other  ques- 
tions than  the  right  to  an  execution,  the  order  can  not  be  justly 
regarded  as  a  final  judgment.  This  must  be  so  for  the  reason 
that  where  the  order  comes  short  of  adjudicating  upon  all  the 
issues  it  is  not  a  final  judgment  authorizing  an  appeal.3 

§  89.  Removal  of  case  to  Federal  Court — Whether  an  appeal 
will  lie  from  an  order  transferring,  or  refusing  to  transfer,  a 
case  to  a  Federal  Court  under  the  act  of  Congress  is  a  question 
upon  which  there  is  a  diversity  of  opinion.  In  the  first  of  our 
decisions  upon  the  subject  it  was  held  that  an  appeal  would  not 

1  Klebar  v.  Town  of  Corydon,  53  Ind.  Gumberts,  3  Eng.  (Ark.)  449;  Woodruff 
95.  v.  Rose,  43  Ala.  3S2;  Bray  v.  Laird,  44 

2  Wright  v.  Rogers,  26  Ind.  21S;  Ala.  295;  Wearen  v.  Smith,  So  Ky.  216; 
Scott  v.  Allen,  1  Texas,  508.  Butcher  v.  Taylor.  iS  Kan.  558;   Abbott 

3  Nat.  Bank  of  Kingwood  v.  Jarvis,  26  v.  Zeigler,  9  Ind.  511;  Harrison  v. 
W.Va.  7S5.  The  principle  asserted  in  the  Thurston,  11  Fla.  307;  Baldwin  v. 
cases  which  hold  that  an  order  vacat-  Wright,  3  Gill.  (Md.)  241;  Snavely  v. 
ing  judgments  and  admitting  parties  to  Abbott  Buggy  Co.,  36  Kan.  106;  Wil- 
defend  are  interlocutory  support  our  son  v.  Shepherd,  15  Neb.  15;  Ante.  § 
conclusion.  McCulloch  v.  Dodge,  8  83.  In  Theirman  v.  Vahle,  32  Ind.  400. 
Kan.  476;  Brown  v,  Edgerton,  14  Neb.  the  doctrine  of  Abbott  v.  Zeigler,  sup ra, 
453;  Kermeyer  v.  Kansas,  etc.,  Co.,  18  is  disapproved,  but  the  later  case  of 
Kan.  215;  Owen  t,-.  Going,  7  Col.  85.  State  v.  Miller,  63  Ind.  475.  overrules, 
So,  also,  do  the  decisions  upon  a  mo-  and  correctly,  the  case  of  Theirman  v. 
tion  to  dissolve  attachments.     Cutter  i>.  Vahle. 


70  APPELLATE   PROCEDURE. 

lie,1  but  this  case  was  subsequently  overruled.2  The  question 
is  not  free  from  difficulty  for  the  language  of  the  act  is  impera- 
tive and  seems  to  leave  nothing  for  the  court  in  which  the  ap- 
plication is  filed  to  do,  except  to  send  the  case  to  the  Federal 
Court.3  The  Federal  Courts,  as  some  of  the  cases  cited  show, 
do,  at  all  events,  assert  the  right  to  exercise  control  over  the 
State  courts  for  the  protection  of  the  party  who  petitions  for  a 
removal. 

90.  Material  Issues  must  be  determined — The  general  rule  is 
that  a  judgment  is  not  final  unless  it  disposes  of  all  the  issues 
as  to  all  of  the  parties.  If  issues  are  not  determined,  or  if  the 
rights  of  one  or  more  of  the  parties  are  left  undecided,  there  is, 
in  general,  no  such  final  judgment  as  will  authorize  or  warrant 
an  appeal.  But  the  judgment  may  be  final  although  some  act 
essential  to  its  enforcement  may  remain  to  be  done.  If  the 
judgment  settles  all  rights  and  all  issues  its  enforcement  is  a 
subsequent  consideration  that  will  not   change  its   character.1 


1  City  of  Aurora  v.  West,  25  Ind.  148. 
To  a  similar  effect  are  the  cases  of  Jack- 
son v.  The  Alabama,  etc.,  Co.,  5S  Miss. 
648;  Jones  v. Davenport,  7  Col\v.(Tenn.) 
145;  Stevens  v.  Phoenix  Insurance  Co., 
41  X.  Y.  149;  Bell  v.  l)ix.  49  N.  Y.  232. 

■  Burson  v.  National  Park  Bank,  40 
Ind.  173,  citing  Akerlv  v.  Vilas,  24 
Wis.  [65;  Whiton  v.  Chicago,  etc.,  Co., 
25  Wi^.  424;  Home  Life  Ins.  Co.  v. 
Dunn.  20  Ohio  St.  175;  Kanouse  v. 
Martin,  15  How.  U.  S.)  19S.  The  de- 
cision in  Burson  v.  National  Park  Bank, 
supra,  is  supported  by  the  cases  of 
Rosenfield  v.  Condict,  44  Texas,  464; 
lli«-  Judge,  23  La.  Ann.  29; 
Bryant  v.  Rich.  to6  Mass.  1S0:  Crane 
v.  Reeder,  28  Mich.  527;  Darst  v.  Bates, 
51  III.439;  Mahone  v.  Manchester,  in 
Mass.  72:  Hough  v.  Western,  etc.,  Co., 
1  Bissell,  425. 

3  Insurance  Co.  V.  Dunn.  19  Wall. 
214:  Green  v.  Creighton,  23  How.  90; 
Fashnachl  v.  Frank.  23  Wall.  416;  The 
Removal  Cases,  too  U.  S.  457;    Good- 


rich v.  Ilunton,  29  La.  Ann. 


Erie 


R.  R.Co.  v.  Stringer,  32  Ohio  St.  46S; 
Ellerman  v.  New  Orleans,  etc.,  Co.,  2 
Woods  C.  C.  120;  Insurance  Co.  v. 
Morse,  20  Wall.  445;  Fisk  v.  Union, 
etc.,  Co.,  6  Blatch.  362;  French  v.  Hay, 
22  Wall.  250.  See,  generally,  Indi- 
anapolis, etc..  Co.  v.  Risley,  50  Ind.  60; 
Union  Tel.  Co.  v.  Dickinson,  40  Ind. 
444;    Atlas,  etc.,   Co.  v.  Byrus,  45  Ind. 

*33- 

*  In  The  St.  Louis,  etc.,  Co.  v.  The 
Southern  Express  Co.,  ioS  U.  S.  24,  it 
was  said  by  Waite,  C.  J.,  that:  "As  we 
had  occasion  to  say  at  the  present  term 
in  Host  wick  v.  Brinkerhoff,  106  U.  S. 
3.  and  Grant  v.  Phoenix  Ins.  Co.,  106  U. 
S.  (29.  a  decree  is  final  for  the  purpose 
of  an  appeal  to  this  court,  when  it  ter- 
minates the  litigation  between  the  par- 
ties on  the  merits  and  leaves  nothing  to 
be  done  but  to  enforce  by  execution 
what  has  been  determined."  It  follows 
from  this  that  if  the  decree  or  judgment 
leaves  no  question  affecting   the  merits 


WHAT   MAY   BE   APPEALED   FROM. 


7;; 


An  order  may  sometimes  so  effectually  determine  all  the  issues 
as  to  all  the  parties  as  to  have  the  effect  of  a  final  judgment  or 
decree,1  but  this  effect  it  can  not  have  if  it  be  merely  interlocu- 
tory or  intermediate,  requiring  for  its  completion  and  consumma- 
tion a  final  decree  or  judgment  putting  an  end  to  the  litigation 
in  the  particular  case.2  If  the  order  is  one  which  settles  the 
controversy  as  to  all  of  the  parties  in  the  particular  case,  it  is 
final  as  to  that  instance  although  it  may  not  cover  the  entire 
subject  upon  which  the  issues  touch,3  but,  under  the  familiar 
rule  that  what  may  be  litigated  under  the  issues  is  deemed  to 
have  been  adjudicated,  it  will  cover  all  that  might  properly  have 
been  litigated.4 

§91.  Rights  of  all  parties  must  be  Adjudicated — The  funda- 
mental principle  is  that  the  case,  in  all  its  parts,  must  be  dis- 
posed of  in  so  far  as  it  is  before  the  court,  under  the  issues, 
otherwise  it  will  not  be  regarded  as  one  in  which  an  appeal  will 
lie.5  This  principle,  taken  in  conjunction  with  the  kindred  one 
that  the  law  does  not  favor  the  decision  of  controversies  piece- 


open  to  controversy  between  any  of 
the  parties,  it  is  final  in  such  a  sense,  at 
least,  as  to  authorize  an  appeal.  Whether 
it  does  settle  all  equities  and  all  ques- 
tions of  law  and  fact,  is,  of  course,  to  be 
determined  from  the  record  in  the  par- 
ticular case.  The  order  of  the  trial 
court  granting  an  appeal  does  not  de- 
termine the  question  of  the  right  to  an 
appeal,  as  that  is  a  question  for  the  de- 
cision of  the  appellate  tribunal.  Callan 
V.  May,  2  Black,  541 ;  Smith  v.  Tra- 
bue's  Heirs,  9  Pet.  4. 

1  In  re  Estate  Gilbert,  104  N.  Y.  200, 
S.  C.  10  N.  E.  Rep.  148;  Vermilye  v. 
Vermilye,  32  Minn.  499,  S.C.  iS  N.  W. 
Rep.  832;  Spitley  v.  Frost,  15  Fed.  Rep. 
299;  Dwight  v.  St.  John,  25  N.  Y.  203; 
In  re  estate  of  Ten  Eyck,  36  Hun.  575; 
Hobbs  v.  Beckwith,  6  Ohio  St.  252: 
Maysville,  etc.,  Co.  v.  Punnett,  15  15. 
Monr.  47;  Eaton  v.  Ryan,  5  Neb.  47; 
Rector  v.  Rotton,  3  Neb.  171. 

2  Eastham    v.    Sallis,  60   Texas,  576; 


Williamson  v.  Field,  2  Barb.  Ch. 
2S1;  Harris  v.  Clark,  4  How.  Pr.  R.  78; 
Whiting  v.  Bank,  13  Pet.  6;  Bronson  v. 
Railroad  Co.,  2  Black,  524. 

3  Belt  v.  Davis,  1  Cal.  134;  Weston  v. 
Charlestown,  2  Pet.  449;  Klink  v.  Cus- 
seta,  30  Ga.  504;  United  States  v. 
Schooner  Peggy,  1  Cranch.  103. 

4  Fischli  v.  Fischli.  1  Blackf.  360; 
Wilson  v.  Buell,  117  Ind.  315,  317,  and 
cases  cited;  Wright  v.  Anderson,  117 
Ind.  349,  354,  and  cases  cited;  Lawrence 
v.  Beecher,  116  Ind.  312,  314;  Moore  v. 
State,  114  Ind.  414,  421;  Center  Tp.  v. 
Board,  no  Ind.  579;  Balfe  v.  Lammers, 
109  Ind.  347;  Bundy  V.  Cunningham, 
107  Ind.  360,  363,  and  cases  cited. 

5  McCollum  v.  Eager,  2  How.  (U.  S.) 
61;  Craighead  :•.  Wilson,  iS  How.  (U. 
S.)  199;  Ayres  v. Carver,  17  lIow.(U.S.) 
591,  594;  Rutherford  :•.  Fisher,  4  Dall. 
22;  Young  v.  Gundy,  6  Cranch,  51; 
Chateau  v.  Rice,  1  Minn.  24. 


74  AiM'KLLA'i  i  I   DURE. 

meal,  requires  that  the  case  be  effectually  and  finally  disposed 
of  as  to  all  the  parties1  before  the  court  and  upon  all  the  ma- 
terial issues  tendered  by  them  for  decision.2  It  is,  indeed,  not 
legally  possible  to  conceive  how  there  can  be  more  than  one 
final  decree  or  judgment  in  a  single  case,  so  that  it  must  be  true 
that  there  is  only  one  final  judgment  or  decree  from  which  an 
appeal  will  He.3  Even  in  the  exceptional  cases  (to  be  hereafter 
noticed)  in  which  appeals  are  allowed  from  orders  or  decrees 
affecting  part  only  of  the  issues,  there  is  no  trenching  upon  the 
doctrine  that  there  can  only  be  one  final  judgment  in  a  single 
case,  for  those  cases  give  full  recognition  to  the  general  rule  by 
assuming  the  character  of  acknowledged  exceptions.  They 
proceed  upon  the  theory  that  there  are  cases  in  which  an  appeal 
will  lie  from  an  interlocutory  order,  not  upon  the  theory  that  the 
rulings  which  may  be  appealed  from  are  final  judgments. 

£  (J2.  Judgment  may  be  final,  although  an  order  may  be  required 
for  its  enforcement — The  phase  of  the  general  subject  of  the 
finality  of  judgments  presented  by  the  proposition,  that  where 
all  the  issues  are  so  decided  as  to  terminate  the  controversy, 
although  acts  essential  to  the  enforcement  remain  to  be  done, 
is  illustrated  by  the  cases  wherein  it  is  held  that  a  decree  in 
partition  is  conclusive  when  it  settles  the  main  issue,  although 
reports  must  be  made  by  a  commissioner  and  acted  upon  by  the 
court.4  Some  of  the  cases  cited  carry  the  doctrine  to  an  extreme 
length,  and  it  is  very  doubtful  whether  they  are  not  opposed  by 

1  Watkins  v.  Mason,  n   Oregon,  72;  3  State    v.   Templin,    122    Ind.    235. 

ris  v.  Mitchell,  33  Tex.  225;   Whit-  The    issues    must    all    he    involved    in 

aker  v.  Gee,  6i   Tex.  217;   Masterson  v.  every   case,    and    upon    all  there  must 

Williams  (Tex.),    11    S.   W.   Rep.   531;  he    a    final    judgment,  or  the  case  can 

Schultz  v.  McLean  (Cal.),  18  Pac.  Rep.  never   come    to    an   end.     Lonsdale  v. 

775;    Peck    v.  Vandenberg,  30  Cal.  11;  Brown,  4  Wash.  C.  C.  148. 

Delcep  v.  Hunter,  1    Sneed,  too;   liar-  *  Fleenor   v.    Driskill,    97    Ind.   27; 

rison    v.    Farnsworth,    1     Heisk.     751;  Kreitline  v.  Franz,  106  Ind.  359;  Jack- 

nden   v.   Methodist,  etc.,  Church,  son  v.    Myers,    120  Ind.  504;    Ansley 

How.  Pr.  R.  327.  v.  Robinson,  16  Ala.  793;     Banton    v. 

1  University   v.  The  Bank,  92   X.  C.  Campbell,  2    Dana.  421;     Damouth  v. 

Low  v.  Crown  Point  Mining  Co..  Klock,  28  Mich.  163;    Beatty  v.  Beatty 

2    Nev.    75;     Perkins   v.  Fourniquet,  6  (Ky.),  5  S.  W.  Rep.  771. 
How.(U.  S.)  206;  Pulliam  v.  Christian. 
6  How.  (U.  S.)  - 


WHAT   MAY    BE  APPEALED   FROM.  75 

the  weight  of  authority  ;  one,  at  least,  of  the  cases  cited  is  in 
some  respects  against  authority.1  The  decisions  of  our  own 
court  affirm  that  the  decree  ordering  partition  and  appointing 
commissioners  is  not  a  final  one  authorizing  an  appeal.-  The 
great  weight  of  authority  supports  this  doctrine.3 

§  93.  Decree  in  Partition  Proceedings — It  is  held  in  the  cases 
cited  in  the  preceding  note,  and  in  other  cases,  that  an  appeal 
will  lie  from  the  order  confirming  the  report  of  the  commission- 
ers and  directing  a  sale  of  the  land  because  of  its  indivisi- 
bility.4 There  is  reason  for  the  doctrine  that  an  appeal  will  lie 
from  an  order  confirming  a  report  of  commissioners  appointed 
under  a  prior  order,  for  if  the  judgment  should  be  reversed  or 
modified  on  appeal,  expense  would  be  entailed  upon  the  parties 
without  corresponding  benefit.  Not  only  may  this  reason  be 
assigned,  but  another  reason  may  also  be  adduced,  and  that  is 
this:  The  sale  by  the  commissioners  necessarily  follows,  and 
hence  is  nothing  more  than  the  enforcement  of  a  decree  by 
wnxcn  the  rights  of  all  the  parties  have  been  finally  adjudicated. 
But  to  hold  that  there  maybe  an  appeal  from  the  order  appoint- 
ing commissioners  to  make  partition,  can  not  be  defended  upon 
the  grounds  suggested,  nor,  indeed,  can  it  be  successfully  de- 
fended upon  any  ground. 

§  94.  Form  of  Judgment  not  important — Form  is  not  a  matter 
of  much  importance  in  determining  whether  a  judgment  is  or  is 
not  final.  If  the  controversy  is  ended  between  the  parties  so 
far  as  the  court  can  end  it,  then  the  judgment  is  final,  regardless 

1  Jackson  v.  Myers,  120  Ind.  504.  S.  C.  12  S.  W.  Rep.  558;  Tilton  v.  Vail. 

2  Rennick  v.  Chandler,  59  Ind.  354;  117  N.  Y.  520,  S.  C.  27,  X.  E.  Rep.  120; 
Davis  v.  Davis,  36  Ind.  160;  Kern  Green  v.  Fisk,  103  U.  S.  51S;  Gesell's 
v.  Maginniss,  41  Ind.  39S;  Wood  v.  Appeal,  84  Pa.  St.  23S;  Templenian 
Wilkinson,  13  Ind.  352;  Clester  v.  v.  Steptoe,  1  Munf.  339;  Putnam  v. 
Gibson,  15  Ind.  10;  Hunter  y.  Miller,  Lewis.  1  Fla.  455;  Hollowav  v.  Hollo- 
17  Ind.  SS;  Cook  v.  Knickerbocker,  11  way,  103  Mo.  274,  11  S.  W.  Rep.  233; 
Ind.  230;  Griffin  v.  Griffin,  10  Ind.  170;  Gates  v.  Salmon,  2S  Cal.  320;  Mills  v. 
Hunter  v.  Miller,  n  Ind.  356.  Miller.  2  Neb.  299;   Ivory  v.  Delore,  26 

3  Buller  v.  Lenzee,  100  Mo.  95,  S.  C.  Mo.  505. 

*3  S.  W.  Rep.  344;  Pipkin  v.  Allen,  29  4  Benefiel  v.  Aughe,  93  Ind.  401,  404; 
Mo.  229;   Davie  v.  Davie.  52   Ark.  224.     McFarland  v.  Hall,  17  Tex.  6j 


76 


APPELLATE   PROCEDURE. 


of  mere  matters  of  form.1  This  must  necessarily  be  true,  since 
if  the  order  terminates  the  litigation  in  the  court  where  it  is 
pending,  nothing  more  can  there  be  done,  except,  perhaps,  to 
prepare  for  an  appeal.  It  is  obvious  that  under  this  rule  an 
order  dismissing  a  case  over  the  objection  of  the  plaintiff  may 
constitute  a  final  judgment.2  But  a  plaintiff  who  voluntarily 
dismisses  his  action  can  not  appeal.3  Judgment  rendered  upon 
demurrer  is  final,1  but,  as  we  have  already  said,  a  ruling  on 
demurrer  is  not  a  final  judgment.  A  decree  may  be  final, 
although  rendered  upon  a  cross-complaint  filed  by  an  interven- 
ing creditor.5 

;j  95.  Independent  Issues  not  affecting  all  Parties — There  may 
be  cases,  where  an  entire  and  distinct  issue  is  formed  between 
some  of  the  parties  without  affecting  other  parties  or  interests,  in 
which  an  appeal  will  lie  although  the  decree  does  not  cover  the 
entire  subject  of  the  suit.0  But  such  cases  are  rare  and  the 
exceptions  to  the  general  rule  can  not  be  multiplied  without 
mischievous  results,  hence  no  case  can  be  regarded  as  beyond 
the  scope  of  the  general  rule  unless  its  peculiarities  are  so 
strong  and  so  well  marked  as  to  leave  little  doubt  that  it  is  a 
case  of  such  an  unique  character  that  it  can  not  be  brought 
under  the  general  rule  without  doing  injustice. 


1  Zoller  v.  McDonald,  it,  Cal.  136; 
Doubing  v.  Polack,  [8  Cal.  625;  Leese 
v.  Sherwood,  2 1  Cal.  164. 

2  English  v.  Devarro,  5  Blackf.  5SS; 
Lin-  ner,  52  Ind.  195;  Koons 
v.  Williamson,  90  [nd.  599;  Box  v.  Ben- 
nett, 1  H.  Blacks,  432;  Hartford  Fire 
[ns.  C  Gi  en,  52  Miss.  332;  Stoppen- 
bach  v.  Zohrlaut,  21  Wis.  385;  Borne 
v.  Kansas-  City,  51  Mo.  (.54;  Scriven  v. 
Hursh,  [9  Mich.  98;  Eddleman  y.Mc- 
Glathery  (Tex.),  11  S.  W.  Rep.  1100; 
Rodgers  v.  Russell,  11  Neb.  361,  S.  C. 
9  V  W.  Rep.  547;  Murdock  v.  Martin, 
1  52  Pa.  St.  86,  is  Atl.  Rep.  [114.  A 
defendant  can   not,   as   a   general  rule, 

il  from  a  voluntary  non-suit  suf- 


fered by  the  plaintiff.  Iloldridge  V. 
Marsh.  28  Mo.  App.  283. 

3  Wilson  v.  The  /Etna  Ins.  Co.,  3 
Ind.  557;  Vestal  v.  Burditt,  6  Blackf. 
555;  Kelsey  v.  Ross,  6  Blackf.  536. 

'  Matter  v.  Campbell,  71  Ind.  512, 
distinguishing  Slagle  v.  Bodmer,  5S 
Ind.465.  See.  also,Scheiffellin  y.Weath- 
erred,  19  Ore.  172,  23  Pac.  Rep.  S93. 

5  Central  Trust  Co.  v.  Grant  Loco- 
motive Works,  135  U.  S.  207. 

6  Trustees  v.  Greenough,  105  U.  S. 
527:  Hinckley  V.  Oilman.  94  U.  S.  407; 
Williams  v.  Morgan,  in  U.  S.  6S4; 
Fosdick  v.  Schall,  99  U.  S.  235;  Farm- 
er's Loan  and  Trust  Co.,  Petitioner, 
1 29  U.  S.  206,  213. 


WHAT   MAY   BE   APPEALED   FROM.  77 

§  96.  Record  must  show  final  Judgment — The  record  must  show 
a  final  judgment  or  the  appeal  will  be  dismissed.1  It"  a  final 
judgment  was  in  fact  entered  and  is  by  a  clerical  error  omitted 
from  the  transcript,  the  omission  may,  of  course,  be  supplied. 
Upon  a  proper  application  the  appellate  tribunal  would  un- 
doubtedly cause  the  error  to  be  corrected,  but  it  could  not  by 
direct  action  of  its  own  remedy  the  defect.  Parties  may  by 
agreement  supply  the  omission,  but  they  can  not  by  agreement 
make  a  final  judgment  if  none,  in  fact,  was  rendered.  Errors 
or  irregularities  may  be  corrected  by  agreement,  or,  by  agree- 
ment waived,  but  a  record  can  not  be  made  by  agreement  where 
there  is  no  foundation  for  it. 

§  97.  Limitation  of  Appeals  to  designated  classes  of  cases  controls 
Jurisdiction — The  judgment  appealed  from  must  be  rendered  in 
a  case  where  the  amount  in  controversy  or  the  character  of  the 
action  or  suit  is  such  as  to  bring  it  within  the  statute,  for,  as  a 
general  rule,  such  a  consideration  as  amount  or  character  is 
jurisdictional  in  its  nature.2  Where  the  statute  fixes  the  amount 
which  must  be  involved  in  the  controversy  to  authorize  an  ap- 
peal the  amount  conclusively  determines  the  right  of  appeal 
unless  the  character  of  the  case  is  such  as  to  make  it  appealable 
irrespective  of  the  question  of  the  amount  involved.  The  de- 
cisions regard  the  statutory  provisions  limiting  the  right  of  ap- 
peal to  designated  classes  of  cases  as  creating  jurisdictional 
barriers  within  which  the  courts  must  confine  themselves,  al- 

1  Wingor.  State,  99  Ind.  343;  Shroy-  N.  C.  7;  Horicon  Shooting  Club  v. 
er  v.  Lawrence,  9  Ind.322.  In  the  case  Gorsline,  73  Wis.  196,  41  N.W.  Rep.  7^; 
last  named  it  was  said:  "In  addition  to  State  v.  Brown,  44  Ind.  329.  It"  judg- 
the  objection  that  there  is  no  final  judg-  ment  has  been  rendered  an  appeal  will 
ment  it  may  be  assumed  that  the  appel-  lie  although  a  finding  is  not  shown. 
late  jurisdiction  of  this  court  can,  in  no  Askren  v.  State,  51  Ind.  592,  distinguish- 
instance,  be  conferred  by  the  agreement  ing  State  v.  Brown,  supra. 
of  parties."  The  final  judgment  is,  'Informer  chapters  we  have  discussed 
as  a  general  rule,  decisive  of  the  the  questions  arising  on  the  statutory 
question  of  the  right  to  appeal,  and  provisions  prescribing  the  amount  which 
as  this  right  must,  ordinarily,  ap-  must  be  in  controversy  to  justify  an  ap- 
pear from  the  record,  it  is  essen-  peal.  See "  The  Supreme  Court,"  Chap- 
tial  that  it  show  a  final  disposition  of  ter  III,  "The  Appellate  Court,"  Chap- 
the  controversy.     Logan  V.   Harris,  90  ter  IV. 


78  APPELLATE  PROCEDURE. 

though  the  parties  make  no  objections  to  the  court's  entertaining 

jurisdiction.1 

18.  Distinct  and  Independent  claims— The  amount  in  contro- 
versy in  the  trial  court  generally  controls,2  and  where  there  is 
a  single  indivisible  claim  there  is  little  difficulty  in  determining 
the  question  of  the  right  to  prosecute  an  appeal,  but  there  are 
instances  where  real  difficulty  may  arise.  Thus  an  adminis- 
trator may  be  made  liable  to  several  parties  and  the  aggregate 
amount  recovered  as  to  him  exceed  the  amount  which  gives  the 
right  of  appeal,  although  as  to  each  of  the  claimants  the  amount 
considered  distributively  would  not  be  sufficient  to  authorize  an 
appeal  by  each  claimant.  In  such  a  case  it  would  seem  that 
the  administrator  might  appeal  from  the  judgment  against  him, 
for  the  fact  that  the  amount  is  to  be  distributed  does  not  lessen 
the  amount  recovered  against  him.3  Where  the  claims  are 
entirely  separate  and  distinct  and  as  such  rest  on  different 
grounds,  the  rule  indicated  can  not  apply.4  As  was  said  in  a 
former  chapter,  the  claims  of  different  and  distinct  parties  in- 
volving separate  rights  can  not  be  so  combined  as  to  give  juris- 
diction.0    Where  the  aggregate  amount  is  sufficient  to  authorize 

1  Lord  v. Goldberg, 8i  Cal.596,22  Pac.  Mathews  (Mo.),    11    S.  W.  Rep.  563; 

Rep.  1 126;  Bienenfeld  v.  Fresno  Milling  Campbell   v.    Mandeville,    no    N.    Y. 

Co.,  S2Cal.425,  S.  C.22  Pac.Rep.  1113;  628,  17  N.  E. Rep.  866;  Moore  v.  Boner, 

Crane  f. Farmer  (Col.), 23  Pac. Rep. 455;  7  Bush.   26;    The  D.  R.  Marton,  91  U. 

Aultman,  etc.,  Co.  v.  Wier,  134  111.  137,  S.  365;  Josuez  v.  Conner,  75  N.  Y.  156; 

24  N.  E.  Rep.  771:  Guidry  v.  Garland,  Galbreath  v. Trump,  83  Ind.  381.     See, 

41   La.  Ann.  756,  S.  C.  6  So.  Rep.  563;  ante,  Chapter  IV. 

Harrison:'.  Moss,  41  La. Ann.  239, 6  So.  3  Saunders  v.  Waggoner,  S2  Va.316; 

Rep.  52S;    Clark  v.  Gresham,  67  Miss.  Martin  v.  Fielder,  82  Va.  455;  Scott's 

203,  7  So.  Rep.  224;  Quimbyv.  Hopping  Succession,  41  La.  668,  S.  C.  6  So.  Rep. 

(N.J.),  19  Atl.  Rep.  123;  McCoy  v.  Me-  792;   Cassidy's    Succession,  40  La.  Ann. 

53  W.  Va.  60,  10  S.  E.  Rep.  19;  S27,  S.  C.  5  So.  Rep.  j<;2.     See,  gener- 

New  York  Elevated  R.  R.  Co.  v.  Fifth  ally,  Powers  v.  Yonkers,  114N.  Y.  145, 

Nat.  Bank,  11S  U.  S.  60S.  21  N.  E.  Rep.  132;   Alexander  v.  Byrd, 

'Knapp    v.    Deyo,    10S    N.   Y.   518;  85  Va.  690,  8  S.  E.  Rep.  577. 

Clark  v.  Gresham,  67  Miss.  203.  7  So.  *  Hartook  v.  Crawford,  S5  Va.  413,  7 

Rep.  224;   Finch  v.  11  art  pence,  29  Neb.  S.  E.  Rep.  53S;    Thompson  v.  Adams, 

j;    \.     W.    Rep.   684;    Lake  Erie,  82  Va.  672. 

Co.  v.  Faught,  129  111.  257,21  N.  5  McCarty  v.  Hamaker,  82  Va.  471; 

E.  Rep.  620;     Buckland  v.  Shepherd,  77  Harrison  v.  Moss,  41  La.  Ann.  239,8. 

Iowa.  329,42  N.  W.  Rep. 311;   Wolff  v.  C.  6  So.  Rep.  52S;  Davis  v.  Bargas,  41 


WHAT  MAY   BE   APPEALED   FROM. 

an  appeal,  the  fact  that  the  decree  provides  for  its  payment  in 
installments  does  not  preclude  an  appeal.1  If  the  judgments, 
although  in  favor  of  different  parties,  are  bound  together  as  an 
entirety  because  of  the  nature  of  the  cause  of  action  on  which 
they  all  rest  and  out  of  which  they  grow,  as,  for  instance,  where 
the  whole  debt  is  secured  by  one  instrument,  the  several  judg- 
ments may  be  combined  so  as  to  give  a  right  of  appeal.- 

§  99.  Appeals  of  part  of  a  case — Exceptional  cases — There  is  a 
class  of  cases  which  apparently  form  an  exception  to  the  gen- 
eral rule  that  an  appeal  will  not  lie  from  part  of  a  case,  but  the 
cases  forming  this  class  will  be  found  on  investigation  to  be 
apparent  rather  than  actual  exceptions.  The  class  to  which 
we  refer  is  composed  of  cases  wherein  an  issue,  distinct,  entire 
and  complete,  is  formed  between  some  of  the  parties  and  upon 
which  issue  a  final  judgment  is  given  affecting  only  the  inter- 
ests and  rights  of  the  parties  to  that  issue.  An  illustration  of 
the  exceptional  class  of  cases  under  immediate  mention  is  sup- 
plied by  a  case  wherein  it  was  held  by  the  Supreme  Court  of 
the  United  States  that  a  purchaser  of  a  railroad  from  a  receiver 
might  appeal  from  a  judgment  allowing  a  claim  filed  against 
the  receiver.3  So  an  order  authorizing  a  receiver  to  borrow 
money  was  held  to  be  an  order  from  which  an  appeal  will  lie 
by  a  person  interested  as  a  lienholder,  but  this  is  pressing  the 
doctrine  to  its  utmost  verge.4  Orders  of  a  similar  general  char- 
acter have  been  held  to  be  appealable.5     In  cases  of  the  kind 

La.  Ann.  313,  S.  C.  6  So.  Rep.  469;  Ad-  2  Rodd  v.  Heartt,  1 7   Wall.  354;   The 

amson's  Appeal,  no  Pa.  St.  459;  Fourth  Rio  Grande,  19  Wall.  17S. 

National  Bank  v.  Stout,  113  Q.  S.  6S4;  3  Louisville,  etc.,  Co.  v.  Wilson,  13S 

Renn  v.  Samos,  42  Texas.   104;    Terry  U.  S.  501,   11   Sup.  Ct.    Rep.   405,   dis- 

f.  Hatch,  93  I".  S.44:    Umlaut"  v.   Urn-  tinguishing  Central  Trust  Co.  v.  Grant 

lauf,  103  111.   651;    Zable    v.   Harris,   S2  Locomotive  Works,  135    U.    S.    207,    10 

K.v-  473-      See,  generally,    Farwell  v.  Sup.    Ct.    Rep.    736.     See    Gibson    v. 

Becker,  129  111.  261,  21  X.  E.  Rep.  792;  Schufeldt,   122  U.  S.  2j:  Philadelphia, 

Langan  v.  Langan,  S3  Cal.  61S,  S.  C.  23  etc.,  v.   Little,  41  X.  J.  Eq.  519,  S.  C.  7 

Pac.Rep.  10S4;    Aultman,   etc.,  Co.   v.  Atl.  R.  356. 

Weir,  134   111.    137,  24    X.  E.  Rep.  771;  4  Matter  of  Farmers  Loan  Trust  Co. 

Telford  v.  Garrels,  132  111.  1550,  24   \.  Petitioners,  .129 U.  S.  206. 

E.   Rep.   573:     Owens    v.   Branson,    2S  5  Reeder  :•.  Machen  ct  al.,  57  Md.  50; 

Mo.  App.  5S4.  Williams  v.   Morgan,    m    U.   S.  6S4; 

1  State  r.Judge.  etc.,  21  La.  Ann.  65.  Bradford    v.  Higgins     Neb.).  47  X.  W. 

Rep.  749. 


80  APPELLATE  PROCEDURE. 

indicated  each  claim  is  treated  as  a  complete  right  of  action  in 
itself,1  divisible  and  distinct  from  all  others.  But,  after  all, 
the  cases  constitute,  as  suggested,  an  apparent  rather  than  an 
actual  exception  to  the  general  rule,  for  the  class  is  composed 
of  cases  where  the  judgment  is  final  as  to  the  particular  issue 
and  the  parties  to  it,  and  the  issue  is  one  which  neither  affects 
the  main  action  nor  the  parties  generally.  If  the  issue  does 
affect  the  main  action  and  does  involve  the  rights  of  others 
than  the  parties  to  the  particular  issue,  there  can  be  no  appeal 
until  there  has  been  a  decree  or  judgment  upon  all  the  issues 
as  to  all  the  parties.  It  is  only  upon  the  ground  that  the  issue 
on  which  the  order  is  based  is  entirely  isolated  from  all  others 
and  concerns  the  parties  to  it,  and  no  others,  that  the  order 
can  be  considered  final.  Where  the  order  does  completely  put 
an  end  to  the  particular  issue  and  fully  settles  the  controversy 
as  to  all  the  parties  affected  by  it,2  then  it  ma}-  be  considered 
as  a  final  judgment,  otherwise  it  can  not  be  treated  as  anything 
more  than  a  non-appealable  interlocutory  order.  Of  course,  a 
statute  or  a  rule  of  court,  where  there  is  power  to  make  such  a 
rule,  may  give  an  appeal  from  an  interlocutory  order,3  but  our 
statute  confines  the  right  of  appeal  to  the  interlocutory  orders 
named. 

.^  100.   Interlocutory  Order  appointing  a  Receiver — One  of  the 

principal  exceptions  to  the  general  rule  that  appeals  will  lie  only 
from  final  judgments  is  that  in  cases  where  parties  seek  the  ap- 
pointment of  a  receiver.  The  statute  expressly  provides  for  an 
appeal  from  an  order  appointing,  or  refusing  to  appoint,  a  re- 
ceiver.1 The  statutory  provisions  upon  this  subject  are  ex- 
plicit, and  there  is  little  need  of  extended  comment.  It  maybe 
said,  however,  that  an  appeal  may  be  taken  from  the  order  on 
the  petition  for  a  receiver  without  awaiting  the  final  judgment.5 

1  Elgin  v.  Mar-hall,  106  U.  S.  578;  6  Dale  v.  Kent.  58  Ind.  584;  Pressley 
Tupper  et  a/,  v.  Wise,  no  U.  S.  398;  v.  Lamb,  105  Intl.  171.  If  the  appoint- 
Fourth  Nat.  Bank  v.  Stout,  113  U.  S.  ment  of  a  receiver  is  properly  made  as 
6S4.  to  the  complaining  party,  the  fact  that 

2  Ex  parte  Spencer.  95  N.  C.  271.  the    appointment  was  erroneous  as  to 

3  Martin  v.  Martin.  14  Ore.  165.  some  other  party  will  not  warrant  are- 
*  R.  S.  1SS1,  §  1231.  versal.    Rapp  v.  Reehling,  122  Ind.  255. 


WHAT   MAY   BE   APPEALED  FROM.  gi 

Where  the  appeal  is  taken  directly  from  the  order,  it  must  be 
perfected  within  ten  days.1  The  time  can  not  be  extended  by 
agreement.2  But  while  a  party  may,  if  he  so  elects,  appeal  di- 
rectly from  the  order,  he  is  not  bound  to  do  so,  for  he  may 
await  the  final  decree  and  make  available  the  questions  pre- 
sented by  the  ruling  on  the  petition.3  An  appeal  from  the  in- 
terlocutory order  does  not  bring  up  any  other  questions  except 
such  as  are  legitimately  connected  with  the  granting  or  refusal 
of  the  order. '  It  has  been  held  that  a  refusal  to  grant  an  appli- 
cation for  a  change  of  judge  presents  a  question  for  consider- 
ation on  an  appeal  from  the  interlocutory  order.5  Where  the 
appeal  is  from  the  order  the  principal  case  remains  in  the  trial 
court,  and  the  pleadings  may  there  be  changed  or  amended,'"' 
but,  of  course,  such  amendments  or  changes  can  not  affect  the 
questions  presented  by  the  record  taken  up  on  appeal. 

§  101.  Interlocutory  Order  for  payment  of  money — An  appeal 
will  lie  from  an  interlocutory  order  requiring  a  part}-  to  make 
a  specific  payment  of  money."  We  have  somewhat  restricted 
the  statutory  words  in  our  statement  for  those  words  are,  "  the 
payment  of  money,"  and  in  thus  restricting  the  language  we 
think  we  have  not  erred.  If  the  language  employed  by  the 
framers  of  the  statute  should  be  given  a  broad  meaning  it  would 
bring  within  its  sweep  ordinary  judgments  for  money,  and  it  is 

This    ruling   rests   upon    the  principle  Smythe  v.  Boswell,   117  Ind.  365.     In 

that  only  the  party  injured  by  a  ruling  Hursh  v.  Hursh,  99  Ind.  500.  the  order 

can  successfully  complain  of  it  on  ap-  was  made  on  the  t6th  of  July  and  the 

peal.     Pattison  v.  Smith,  93  Ind.  447;  appeal  was  perfected  on  the  26th,  and 

Cool   v.  The  Peters  Box,  etc.,  Co.,  87  it  was  held  to  be  in  time. 

Ind.  531.     See,  generally,  Hellebush  v.  3  Buchanan    v.    Berkshire    Life    Ins. 

Blake,  119  Ind.  349.  Co.,  06  Ind.  510. 

1  Vance  v.  Schayer,  76  Ind.  194.  4  Main  :•.  Ginthert,  92  Ind.  1S0:  Pouder 
Prior  to  the  act  of  1S75  'ne  decisions  v.  Tate,  96  Ind.  330;  Hursh  et  al.  v. 
were  that  an  appeal  would  not  lie  from  Hursh,  99  Ind.  500,  503:  Xaylor  v. 
an  order  appointing  a  receiver.     Wood  Sidener,  106  Ind.  179. 

v.  Brewer,  9  Ind.  86;  Fuller  v.  Adams,  s  Shoemaker  v.  Smith,  74  Ind.  71. 
12  Ind.  559.  Cited  in  Shoemaker  v.  Smith,  100  Ind. 

2  Flory  v.  Wilson,  S3  Ind.  391.     This     40. 

ruling  is  in  harmony  with  the  general         6  Xaylor  v.  Sidener,  106  Ind.  1 70, 1S4. 
doctrine  that  consent  can  not  give  an  ap-         7  R.  S.,  §  646,  subdivision  1. 
pellate  court  jurisdiction  of  the  subject. 

6 


vj  APPELLATE   PROCEDURE. 

evident  that  such  a  result  was  not  intended.  If  a  wide  effect 
be  ascribed  to  the  statutory  provision  under  consideration  it 
would  bring  that  provision  into  direct  conilict  with  settled  rules 
and  other  statutory  provisions,  and  that,  it  seems  clear  to  us, 
the  legislature  did  not  mean  to  do.  The  statute  applies  to  an 
order  to  pay  money  into  court  on  proceedings  supplementary 
to  execution.1  An  order  to  pay  money  into  court  made  upon 
the  application  of  a  receiver  is,  as  it  has  been  held,  within  the 
rule  declared  by  the  statute-  The  class  of  cases  embraced 
within  the  scope  of  the  statute  under  consideration  has  been 
characterized  as  one  in  which  the  denial  of  an  appeal  is  likely 
to  work  such  hardship  that  it  is  the  duty  of  the  courts  to  deal 
with  members  of  the  class  with  liberality.3  It  is  safe  to  say,  at 
all  events,  that  the  provision  allowing  an  appeal  is  in  further- 
ance of  justice,  and  that  it  is  just  to  extend  its  operation  by  a 
liberal  construction  rather  than  to  narrow  it  by  a  strict  and 
rigid  interpretation. 

§  102.   Order  directing  execution  of  a  written  instrument — An 

interlocutory  order  commanding  the  execution  of  "an  instru- 

1  McKnighl    v.   Knisely,  25  Ind.336;  quiring  the   delivery  of  property  to  ;i 

Pounds  v.  Chatham,  96  Ind.  342.     In  receiver  is  not  appealable  in  the  absence 

tin-  case  first  named  it  was  said:    "It  is  of  a  statute   authorizing  appeals   from 

contended  thai   the  words  ' payment  of  such  orders.    Forgaj'w. Conrad, 6  How. 

money'   mean   the   payment   from   one  U.  S.  201 ;  Grant  v.  Phoenix  Ins.  Co.,  106 

party  to  a  suit  to  another,  that  they  do  U.  S.  429.     In  view  of  the  fact,  brought 

not  embrace  orders  tor  the  payment  of  out  very  prominently  in  the  case  lasl 

money    into  court.     This    is    not   a  fair  mentioned,  that    the    possession  of  the 

construction   "t"  the   clause   under    con-  receiver  is  that    of  the    court,  ami    that 

sideration.     This  is  a  remedial  statute,  he  holds  money  or  property  to  be  deliv- 

and  musl  he  liberally  construed.     The  ered   upon  a  final  decree  to  the  party 

evils  i'  .'■  tided  to  died  were  thai  entitled  thereto,  it  may  well  he  doubted 
the  defendants  were  often  compelled  to  whether  the  decision  in  Cook  V.  Citi- 
part  with  their  money  under  erroneous  zens  National  Hank  is  sound.  For  in- 
interlocutory  orders  of  the  common  teresting  cases  defining  the  right  of  the 
pleas  and  circuil  courts  and  were  sub-  court  to  direct  the  payment  of  money 
1  to  the  inconvenience  of  having  it  to  one  of  its  officers,  see  Dillon  v.  Con- 
tied  up  to  await  the  slow  process  of  long  necticut,  etc.,  Ins.  Co.,  44  Md.  3S6;  Mc- 
litigation  without  the  right  of  appeal  Kim  v.  Thompson,  1  Bland  Ch.  150; 
until  after  final  judgment."  Contee  v.  Dawson,  2  Bland,  264,  269. 

1  Cook  V.  Citi/ens  National  Bank,  73  3  Merle  v.  Andrews,  4  Tex.  200;    StO- 

Ind.  256;   Coykendall  :.  Way.  29  Minn,  vail  v.  Bank:-.  10  Wall.  5S3. 
[62.     It  has  been  held  that  an  order  re- 


WHAT   MAY   BE   APPEALED   FROM. 

ment  of  writing"  may  be  appealed  from.1  The  language  of 
the  statute  is  very  comprehensive  and  seems  to  authorize  an 
appeal  in  any  case  where  an  order  is  made  requiring  the  e 
cution  of  a  written  instrument,  but  it  is  difficult  to  conceive 
many  cases  to  which  it  can  apply.  The  statute  creates  an  ex- 
ception to  the  general  rule  and  hence  embraces  only  such  a 
case  as  bears  the  essential  marks  of  an  exception.  The  lan- 
guage employed  can  not  be  construed  as  authorizing  an  appeal 
by  a  party  who  asks,  but  fails  to  secure,  an  order  compelling 
the  execution  of  a  written  instrument,  for  there  is  no  valid  rea- 
son for  straining  the  words  beyond  their  plain  meaning.  The 
provision  under  examination  is  probably  borrowed  from  the 
chancery  practice  which  was  more  liberal  in  allowing  reviews 
by  appellate  tribunals  than  that  of  the  common  law.2 

§  103.   Orders  requiring  Delivery  of  Property — The  statutory 

provision  declaring  that  appeals  may  be  taken  from  interlocu- 
tory orders  "  for  the  delivery  of  the  possession  of  real  property 
or  the  sale  thereof,"  does  not  appear  to  have  been  often  in- 
voked.3 It  has,  however,  been  held  to  apply  to  a  case  wherein 
an  order  of  sale  was  made  upon  the  petition  of  an  administrator.4 
The  provision  under  immediate  mention  is  broad  enough  to  in- 
clude all  cases  where  there  is  an  order  for  the  sale  of  real  prop- 
erty and  there  seems  to  be  no  valid  reason  for  limiting  it  to  a 
particular  class  of  cases.  The  decisions  which  declare  that  an 
appeal  will  lie  from  an  order  in  a  partition  suit  directing  the 
sale  of  land  might  well  be  rested  upon  the  statutory  provision 
under  consideration,  for  its  terms  are  very  comprehensive. 


1  R.  S,  §  646,  subdivision  1.  201;     Witbeck  v.  Chittenden,  50  Mich. 

2  The  chancery  practice  as  enforced  426;  Maxfield  :•.  Freeman,  39  Mich.  64. 
by  some  of  the  courts  allowed  an  ap-  3  R.  S.,  §  646.  subdivision  2. 

peal  from  an  interlocutory  order  which  *  Simpson  t'.  Pearson,  31  Ind.  1.  In 
effectually  disposed  of  the  branch  of  this  rase  it  was  said  that  the  ruling  was 
the  case  upon  which  it  professed  to  op-  not  in  conflict  with  the  doctrine 
erate.  Wing  v.  Warner,  2  Doug,  clared  in  the  cases  of  Staley  :■.  Dor- 
(Mich.)  2S8;  Lewis  v.  Campau,  14  11  Ind.  367;  Love  v.  Mikals,  12  Ind. 
Mich.  458;  Kingsbury  V.  Kingsbury,  20  439:  and  Berry  v.  Berry,  22  Ind.  275. 
Mich.  212;  Patterson  v.  Hopkins,  23  Order  for  the  delivery  of  personal  prop- 
Mich.  541;    Barry  v.  Briggs,  22  Mich.  erty.  In  re  Jones,  ^^  Minn.  405. 


84  APPELLATE   PROCEDURE. 

§  104.  Order  requiring  Assignment  of  Instruments — An  inter- 
locutor)- order  compelling  "  the  delivery  or  assignment  of  any 
securities,  evidences  of  debt,  documents  or  things  in  action"  is 
one  from  which  an  appeal  will  lie,  although  it  is  essentially  in- 
terlocutory.1 This  provision,  like  the  one  discussed  in  the  pre- 
ceding paragraph,  is  borrowed  from  the  chancery  practice.  It 
applies,  however,  only  to  cases  where  the  order  operates  upon 
a  party  so  as  to  take  from  him  a  substantial  right  as  a  party 
litigant.  It  does  not  apply  to  intermediate  orders  requiring  the 
production  of  mere  instruments  of  evidence  for  use  on  the  trial 
or  for  inspection.  To  give  the  statute  a  construction  that  would 
make  it  operate  on  instruments  of  evidence,  sought  to  be  used 
as  evidence  only,  would  bring  it  into  conflict  with  the  cardinal 
rule  that  there  is  no  right  of  appeal  where  the  order  does  not  af- 
fect the  merits2  as  well  as  the  rule  that  cases  can  not  be  appealed 
in  fragments.  An  order  affecting  a  matter  of  evidence  may  un- 
questionably affect  the  merits  of  a  controversy  (and  so,  indeed, 
do  rulings  on  the  pleadings  and  on  motions),  but  it  does  not 
affect  the  merits  in  that  final  and  decisive  manner  which  takes 
from  it  the  character  of  an  intermediate  and  non-appealable  or- 
der. The  authorities  declare  the  rule  to  be  that  an  order  for 
the  production  of  books  or  papers  for  inspection,  or  for  use  as  an 
instrument  of  evidence  is  not  appealable.3  Confusion  of  a  very 
mischievous  tendency  would  result  from  a  rule  which  would 
allow  appeals  from  orders  requiring  the  production  of  instru- 
ments of  evidence,  for  it  would  lead  to  appeals  in  cases  where 
promissory  notes,  mortgages,  receipts  or  the  like  are  ordered 
to  be  produced,  and  thus  make  litigation  almost  interminable.4 

1  R.  S.,  §  646,  .subdivision  1.  This  sylvania  Co..  132  Pa.  St.  403;  Lester  v. 
provision  does  not  authorize  an  appeal  Berkowitz.  125  111.  307;  S.  C.  17  N.  E. 
from  an  order  refusing  to  approve  the     Rep.  706. 

rl  of  an  assignee  under  the  volun-  4  It  is,  no  doubt,  the  duly  of  a  trial 
tary  assignment  law.  Cravens  t\  Cham-  court  to  restrict  an  order  for  the  pro- 
bers, 55  Ind.  5.  duction  of  books  or  documents  so  that 

2  State  t\  Brown,  5  Ore.  119;  Wat-  only  competent  parts  shall  be  open  to 
kins  v.  Mason.  11  Ore.  72.  inspection.      The  failure    to    limit    the 

3  Western  Union  Telegraph  Co.  v.  order,  where  there  is  an  appropriate 
Locke,  107  Ind.  9:  Cleveland,  etc..  R.  and  timely  request,  would  unquestion- 
R.  Co.  v.  Closser,  126  Ind.  34S,  9  Law.  ably  be  error,  and  if  injury  resulted 
Anno.  Rep.  754,  761;  Logan  v.  Penn-  might  be  cause  for  reversal,  but  such  an 


WHAT  MAY   BE  APPEALED   FROM.  85 

§  105.  Orders  compelling  Execution  of  Instruments  of  writing— 
From  an  interlocutory  order  compelling  the  execution  of  an 
instrument  of  writing  an  appeal  will  lie.1  This  provision  has 
seldom  been  under  consideration  by  the  court.  It  is  expressed 
in  sweeping  language,  but  nevertheless  it  has  necessarily  a  very 
limited  scope,  since  there  are  not  many  cases  where  an  inter- 
locutory order  is  entered  compelling  the  execution  of  a  written 
instrument.  Broad  as  is  the  language  employed  it  seems  that 
it  can  not  apply  to  mere  formal  evidentiary  instruments,  that  is, 
instruments  for  use  as  mere  matter  of  evidence  on  a  trial,  for  it 
is  evident  when  reference  is  made  to  the  chancery  practice  from 
which  the  provision  is  taken,  that  only  such  instruments  are 
meant  as  require  a  decree  to  coerce  their  execution.  A  mere 
instrument  of  evidence  does  not  need  a  decree  to  compel  its 
execution,  although  it  is  true  that  an  instrument  executed  pur- 
suant to  a  decree  may  be  used  as  evidence.  It  has  been  held 
that  an  appeal  will  lie  from  an  order  directing  the  execution  of 
a  deed,2  and  this  is  in  harmony  with  the  principle  just  stated. 

§  106.  Orders  granting  or  denying  Injunctions — An  appeal  will 
lie  from  an  order  "  granting  or  dissolving,  or  overruling  motions 
to  dissolve,  an  injunction  in  term,  and  granting  an  injunction  in 
vacation."3  In  giving  practical  effect  to  this  provision  the  court 
has  held  that  there  is  a  difference  between  a  temporary  injunc- 
tion and  a  restraining  order.  The  difference  between  a  re- 
straining order  and  a  temporary  injunction  is  that  the  restrain- 
ing order  is  granted  for  a  limited  time  and  that  time  is  held  to 
be  such  as  will  enable  the  complainant  to  give  the  defendant 
notice,  while  a  temporary  injunction  can  only  be  granted  upon 
notice.'     The  distinction  is  important  in  appellate  procedure  for 

order,   although  erroneous,  is  not  one  Ind.  391;   Ogle  v.  Dill,  55  Ind.  130.     In 

from   which  an  appeal  may  be  prose-  Wallace  v.  McVey,  6  Ind.  300, 303,it  was 

cuted.  said:   "The  restraining  order  contem- 

1  R.  S.,  §  640,  subdivision  1.  plated  by  this  section   is   limited   in  its 

2  Rinehart  r.Bowen,  44  Ind.  353.  operation,   and    extends    only    to    such 

3  R.  S.,  $  646.  subdivision  3.  reasonable  time  as  may  lie  necessary  to 

4  Flagg  v.  Sloan,  16  Ind.  432;  The  notify  the  opposite  party.  Temporary 
Cincinnati,  etc.,  Co.  :\  Huncheon,  16  injunctions  are  usually  granted  in  va- 
Ind.  430;  Applegate?\  Edwards.  45  Ind.  cation  and  in  terms  they  continue  in 
329;  Pleasants    v.  Vevay,  etc..   Co..   42  force    until    the    further   order   of    the 


8G 


APPELLATE   PROCEDURE. 


the  reason  that  an  appeal  will  not  lie  from  an  order  granting  a 
temporary  restraining  order,1  while  an  appeal  will  lie  from  an 
order  granting  or  dissolving  a  temporary  injunction-  if  made  in 
term,  although  no  appeal  lies  from  an  order  made  in  vacation 
denying  an  injunction.3  But  from  an  order  made  in  vacation 
granting  a  temporary  injunction  an  appeal  will  lie.4  It  has 
been  held  that  if  a  parte  does  not  appeal  from  an  interlocutory 
order,  made  in  term,  overruling  a  motion  to  dissolve  a  temporary 
restraining  order  that  he  can  not  take  advantage  of  the  ruling 
on  appeal,  although  the  ruling  may  be  erroneous,5  but  this  doc- 
trine must,  as  we  suppose,  be  taken  with  some  qualification,  for 


court,  which  is  frequently  for  several 
months."  See,  generally.  City  of  Col- 
umbus v.  The  Hydraulic,  etc.,  Co.,  33 
Ind.  435. 

1  See  cases  cited  in  note  2;  Cincin- 
nati, etc.,  Co.  v.  Huncheon,  16  Ind.  436; 
Rule  v.  Gumaer  (Colo.),  21  Pac.  Rep. 
905;  In  re  Barret's  Appeal  (Pa.),  13  Atl. 
Rep.  72;  East,  etc.,  Co.  v.  Williams,  71 
Texas,  444, 9  S.  W.  Rep.  436.  See,  also. 
Lid  :•. Coleman,  19  Ind.  66;  Spaulding 
Thompson,  12  Ind.  477;  Mahncke  v. 
City  of  Tacoma,  1  Wash.  iS,  23  Pac. 
Rep.  804.  In  Sheward  v.  Citizen's 
Water  Co.  (Cal.),  27  Pac.  Rep.  439.  it 
was  held  that  where  a  temporary  in- 
junction was  -ranted  and  on  final  hear- 
ing made  perpetual,  that  an  appeal 
would  lie  only  from  the  final  decree. 
The  court  said,  "  Upon  the  entry  of  the 
final  decree  this  provisional  remedy 
was  merged  in  the  perpetual  injunction 
thereby  -ranted  to  the  plaintiff  and 
ed  to  have  any  operative  effect 
upon  the  defendant.  1 1  s  functions  hav- 
ing thus  terminated,  there  was  thi 
after  no  existin  granting  an  in- 

junction from  which  an  appeal  could  he 
taken."  See,  also,  Webber  v.  Wilcox. 
45  Cal.  301;  Lamberl  v.  Haskeli,  So 
Cal.  611,  22  Pac.  Rep.  327:  Gard- 
ner v.  Gardner,  87  N.  Y.  14;  Jackson 
v.  Bunnell,   in,  N.  Y.  216,   220.   _m    X. 


E.  Rep.  79.  It  is  undoubtedly  true  that 
when  the  temporary  order  is  merged  in 
the  permanent  one,  an  appeal  will  not 
lie  from  the  former. 

2  Michigan,  etc. .Co.  v.  Northern,  etc., 
Co.,  3  Ind.  239;  Bradley  o.  Bearss,  4 
Ind.  186;  Bronenberg  v.  Board,  41  Ind. 
502. 

3  In  the  case  of  Pleasants  v.  The 
Vevay,  etc.,  Co.,  42  Ind.  391,  it  was 
said  :  "  It  should  be  observed  that  an  ap- 
peal is  given  from  an  interlocutory  or- 
der granting  or  dissolving,  or  overrul- 
ing motions  to  dissolve,  an  injunction 
in  term.  Before  an  appeal  lies  there 
must  be  either  an  injunction,  granted 
in  term  or  vacation,  or  an  injunction 
must  be  dissolved  in  term,  or  a  motion 
to  dissolve  must  be  overruled  in  term. 
An  appeal  lies  from  the  refusal  of  a 
judge,  in  vacation,  to  grant  an  injunc- 
tion, or,  for  dissolving  in  vacation  an 
injunction,  or  for  overruling  in  vacation 
a  motion  to  dissolve.  The  only  case 
in  which  an  appeal  lies  to  this  court, 
under  the  third  clause  of  said  section, 
from  an  order  made  in  vacation,  is  for 
granting  an  injunction." 

*  Bronenberg  v.  Board,  41  Ind.  502. 
Sei  Fisk  v.  The  Patriot,  etc.,  Co..  54 
Ind.  479.  481. 

5  Becknell  v.  Becknell,  no  Ind.  42,  53. 


WHAT  MAY  BE  APPEALED  FROM.  37 

if  the  final  decree  should  den}'  an  injunction,  although  other 
relief  might  be  decreed,  it  seems  clear  that  the  defendant  might, 
upon  an  appeal  from  the  final  judgment,  avail  himself  of  the 
error  in  overruling  the  motion  to  dissolve,  provided,  of  course, 
that  it  be  made  to  appear  that  the  error  was  prejudicial  to  him. 
It  is  difficult  to  conceive  why  a  party  may  not  avail  himself  of 
a  ruling  awarding  the  extraordinary  writ  of  injunction  in  a  case 
where  the  plaintiff  has  no  right  to  it.  The  case  is  different 
where  the  temporary  order  is  made  permanent  by  being  carried 
into  a  perpetual  injunction  by  the  final  decree,  for  in  such  a 
case  there  can  be  no  prejudicial  error.1  To  make  an  error  in 
ruling  upon  application  for  an  injunction  available  on  appeal 
the  record  must  affirmatively  show  the  proper  motion  or  plead- 
ings and  due  exceptions.2  An  appeal  from  an  interlocutory 
order  in  suits  for  an  injunction  does  not  put  an  end  to  the  entire 
suit,  but  simply  carries  to  the  appellate  tribunal  the  rulings  con- 
nected with  the  order.3 

§  107.  Interlocutory  orders  in  Habeas  Corpus  proceedings — Ap- 
peals are  authorized  in  cases  where  interlocutory  orders  are 
made  in  applications  for  a  writ  of  habeas  corpus.*  The  appeal 
from  an  interlocutory  order  must  be  taken  in  term  and  as  pro- 
vided in  the  statutory  enactment  especially  applicable  to  ap- 
peals from  interlocutory  orders.5  If  not  taken  as  that  enact- 
ment requires  it  will  be  deemed  to  have  been  abandoned.6  But 
the  abandonment  of  the  right  to  appeal  from  an  interlocutorv 
order  does   not  preclude  an  appeal,  under  the  general  provis- 

1  Board  of  Commissioners  v .  Markle,  *  R.  S.,  §  646,  subdivision  4;  Speer  v. 
46  Ind.  96,  99;   Heagy  v.  Black,  90  Ind.     Davis,  38  Ind.  271. 

534-  5  R.  S.,  k  647- 

2  Clark  v.  Shaw,  101  Ind.  563;  Heagj  6  The  State  v.  Banks,  25  Ind.  491;. 
v.  Black,  90  Ind.  534;  Slagle  v.  Bod-  In  this  case  it  was  said:  "The  ap- 
mer,  58  Ind.  465;  Newell  v.  Gatling,  7  peal  prayed  was  evidently  abandoned 
Ind.  147.  See,  generally,  State  v.  Chase,  by  a  failure  to  file  the  record  within  the 
41  Ind.  356.  time  limited  by  statute.     If  the  appeal 

3  Rayle  v.  The  Indianapolis,  etc.,  Co.,  can  be  sustained,  it  must  be  on  the 
40  Ind.  347.  citing  Thompson  v.  Adams,  ground  that  it  might  be  taken  in  vaca- 
2  Ind.  151;  Gray  v.  Baldwin,  S  Blackf.  tion,  at  any  time  within  three  years  af- 
l(M-  ter  the  rendition  of  the  judgment,  in  the 

circuit  court." 


gg  APPELLATE   PROCEDURE. 

ions  of  the  statute,  from  the  final  judgment  pronounced  in  the 
case.1  Although  an  appeal  will  lie  from  a  final  judgment  in  a 
case  of  an  application  for  a  writ  of  habeas  corpus,  the  proceed- 
ing is  not  an  ordinary  civil  action,  but  is  strictly  a  special  pro- 
ceeding under  the  statute.2  Appeals  in  cases  of  habeas  corpus 
must  be  taken  to  the  Supreme  Court.  Submission  on  appeal 
may  be  made,  on  motion,  at  any  time  after  the  appeal  is  per- 
fected, provided  notice  has  been  given  to  the  adverse  party  or 
his  attorney.  Three  days'  notice  of  the  motion  is  required  and 
the  notice  may  be  served  by  the  sheriff  or  by  any  other  person, 
or,  there  may  be  an  acknowledgment  of  service.  Proof  of 
service  must  be  filed  with  the  clerk.  Submission  may  also  be 
made  on  call  or  by  agreement.3 

§  108.  Effect  of  Appeal  from  an  Interlocutory  Order — It  is  evi- 
dent that  the  system  of  procedure  created  by  the  statute  regu- 
lating appeals  from  interlocutory  orders  is  a  peculiar  one,  and 
that  the  ordinary  rules  governing  appeals  generally  do  not 
fully  apply.  The  decisions  upon  the  subject  of  appeals  from 
interlocutory  orders  made  upon  applications  for  the  appoint- 
ment of  receivers  lay  down  a  principle  that  must  apply  gener- 
ally, at  least,  to  all  appeals  from  the  interlocutory  orders  we 
have  been   considering,  and  that  principle,  stated  in  a  rough 

'Nichols    v.  Cornelius,  7   Ind.  611;  will  not  be  fatal.     McGrewv.  McCarty, 

Henson  v.  Walts.  40  Ind.  170.  78  Ind.  496.     A    jury    trial    is   not  de- 

1  Baker  v.  Gordon,  23  Ind.  204:  Gar-  mandable.     Orr  v.  Miller,  qS  Ind.  436. 

ner   v.   Gordon.  41    Ind.  92.     The  suf-  A  writ  of  habeas  corpus  does   not  per- 

ficiency  01"  the  petition   must  he  ques-  form  the  functions  of  an  appeal  or  of  a 

tioned  by  a  motion  to  quash  the  writ,  hill  of  review,  mere  errors  can  not  be 

Milligan    v.   The    State,   97    Ind.  355;  corrected  by  it.     Smith  v.  Hess,  91  Ind. 

Willis   v.  Bayles,  105  Ind.  363.     What  424;    Lowery  v.  Howard,  103  Ind.  440; 

the  petition  should  show.  In  re  Cuddy,  Lucas    v.    Hawkins,    102    Ind.  64;    Ex 

131    I                             -parte   Walpole,  84  parte    Spencer,    S3   Cal.  460,  23    Pac 

Cal.    584,    J 1    Pac.    Rep.    308.      A    re-  Rep.  395;    Ex   parte    Millett,   37    Mo. 

turn  I                                        <rpus  must  he  A  pp.  76;    Davis   v.  Beason,   133  U.   S. 

challenged  by  an  exception  and  not  by  ^3;    Wright  v.  Wright,  74   Wis.  439, 

a  demurrer.     Sturgeon  v.  Gray,  96  Ind.  43   N.  W.   Rep.   145.     A    return   good 

Ind.  32S;    Mc-  upon   one  ground  will  prevail  against 

lan    -.    Margowski,  90    Ind.    150;  a  general  exception.     Brooke  v.  Logan. 

Cunningham   v.  Thomas,   25   Ind.  171.  112  Ind.  1S3. 

But    an    irregularity    in    the   procedure  3  Supreme  Court  Rule  XIX. 
which  does  not  work  substantial  injury 


WHAT   MAY   BE  APPEALED  FROM.  89 

way,  is,  that  only  such  questions  are  brought  before  the  appellate 
tribunal  as  are  connected  with  the  interlocutor}'  order  appealed 
from,  or,  as  it  has  been  expressed,  "such  matters  as  lead  up  to 
the  order."  The  statute  certainly  does  not  contemplate  a  de- 
cision upon  the  entire  case  where  there  is  nothing  more  than  an 
appeal  from  an  interlocutory  order ;  it  is,  indeed,  impossible  to 
conceive  how  it  can  be  within  the  power  of  parties  to  invoke  a 
decision  upon  an  entire  controversy  where  only  a  part  of  it  is 
brought  before  the  appellate  tribunal.1  There  may  be  cases 
where  a  ruling  on  an  interlocutory  order  can  not  be  understood 
or  disposed  of  without  considering  the  complaint  and  determin- 
ing its  sufficiencv,  since  the  complaint  may  so  far  involve  the 
ruling  in  the  order  as  to  require  a  decision  upon  it,2  but  ordi- 
narily the  only  question  affecting  the  sufficiency  of  the  complaint 
that  can  be  considered  on  an  appeal  from  an  interlocutory  order 
is  such  as  is  directly  involved  in  the  order  and  necessary  to  a 
judgment  upon  it. 

§  109.  Mode  of  Appealing  from  Interlocutory  Orders — Appeals 
from  the  interlocutory  orders  made  appealable  by  statute  must 
be  taken  as  the  statute  especially  applicable  to  such  cases  pro- 
vides.3 A  bond  must  be  filed  and  the  appeal  must  be  taken  at 
the  term  at  which  the  order  is  made,  if  made  in  term  time,  but 
if  not  made  in  term  time,  then,  at  the  time  it  is  made  or  during 
the  next  term.4  The  right  to  appeal  from  interlocutory  orders 
is,  as  appears  from  what  has  been  said,  a  peculiar  one,  and 
governed  by  special  rules.5  We  have  seen,  in  discussing  the 
rule  governing  appeals  in  receivership  cases,  that  there  is  a 

1  In  Berry    v.  Gravel,   n   Iowa,   135,  and  can  not  be  considered  as  authorita- 

the  court  said,  in  speaking  of  an  appeal  tive  under  such  a  statute  as  ours, 

from  an  interlocutor}' order,  that,  "such  2  Learmotth   v.  Veeder,   11  Wis.  138; 

an  appeal  does  not  bring  up  the  main  Lyon  v.  Blossom.  4  Duer  (N.  Y.),  31S. 

case   for  review  here,  except  so  far  as  3  R.  S.  1SS1,  §  647. 

material  to  the  understanding  and  dis-  *  Simpson    v.    Pearson,    31     Ind.     1; 

position  of  that  from  which  the  party  Baker  v.  Griffitt,  S3  Ind.  411,  415. 

appeals."      The    case    from    which    we  5  In    Wood  v.  Brewer,  9  Ind.  S6.    it 

have  quoted  holds  that  an  appeal  will  was    said:      "An    appeal    does    not    lie 

lie  from  an  interlocutory  order  dissolv-  from  an  interlocutory  order,  except  by 

ing  an   attachment,   but  the  ruling  on  statute." 
that  point  is  based  on  a  peculiar  statute 


90  APPELLATE  PROCEDURE. 

marked  peculiarity  which  distinguishes  such  cases  from  appeals 
in  ordinary  civil  actions,  and  what  is  true  of  such  cases  is,  in 
principle,  substantially  true  of  all  appeals  from  interlocutory 
orders. 

§  110.  Void  Judgments — Appeals  from — An  appeal  will  lie  from 
a  void  judgment.1  There  is  solid  reason  for  this  rule  inasmuch 
as  it  enables  a  party  injured  by  such  a  judgment  to  remove  it 
from  the  record  without  injury  to  the  rights  of  adverse  parties, 
for  they  can  have  no  rights  under  a  judgment  which  has  no 
force.  It  is  a  sacrifice  of  substance  to  a  barren  technicality  to 
hold,  as  some  of  the  courts  do,  that  no  relief  can  be  had  against 
a  void  judgment.  Our  court  has,  whenever  the  question  has 
been  presented,  refused  to  enforce  any  such  a  rule,  and  has 
granted  relief,  although  the  proceeding  was  a  nullity.2 

1  Louisville,  etc.,  Co.  v.  Lockridge,  93  lenger  v.  Todd,  5  Oregon,  36;  Smith  v. 

Ind.  191;  Board  of  Com.  v.  Logansport,  Ellendale  Mill  Co.,  4  Oregon,  70;  Cof- 

etc,  Co.,  88  End.  [99;   Cain  v .  Goda,  84  fey   v.  Wilson,  2   Ala.  701;    Evans  v. 

Ind.  209;    Dyer  v.  Board,  S4  Ind.  542;  Adams,  3  Green,  L.  (N.J. ),  373;  People 

Shoultz  v.  MiPheeters,  79  Ind.  373,  379;  :•.  Ferris,  35  N.  Y.  125. 
Brown  v.  Goble,  97  Ind. 86;   Shoemaker        2  Leary  v.  Dyson,  98  Ind.  317;  Bishop 

:.   Board,    36   Ind.  175.     Other  courts  v.  Moorman,  9S  Ind.  1. 
have  asserted  the  same  doctrine.     Trul- 


CHAPTER   VI. 


THE  TIME  WITHIN  WHICH  AN  APPEAL  MAY  BE  TAKEN. 


§   in.    Limitation  of  time  is  jurisdic- 
tional. 

112.  Time  can  not  be  enlarged. 

113.  Cases  regarded  as  exceptions — 

Peculiar  features  of. 

114.  Time  not  extended  to  the  party 

in  fault. 

115.  Diligence  exacted. 

116.  Petition  for  leave  to  appeal  after 

the  expiration  of  the  time  lim- 
ited. 

117.  Rule  where  the  delay  is  caused 

by  the  act  of  the  court. 

118.  When  the  time  begins  to  run. 

119.  Final  judgment  and  entry— Time 

begins  to  run  from. 

120.  Independent  actions. 

121.  When  the  right  of  appeal  ma- 

tures. 


§  122.    Computation  of  time — The  be- 
ginning. 

123.  Collateral  and  independent  mat- 

ters. 

124.  How  the  date  of  the  final  judg- 

ment is  ascertained. 

125.  Day    the   judgment   is    entered 

excluded. 

126.  The  meaning    of  the    words 

months  and  years. 

127.  Non-judicial  days. 

12S.  The  appeal  must  be  fully  per- 
fected within  the  time  pre- 
scribed. 

129.  Bar,  by  limitation,  of  part  of  the 

appellants. 

130.  Parties  under  disabilities. 


§111.  Limitation  of  Time  is  Jurisdictional — The  time  within 
which  an  appeal  must  be  taken  is  fixed  by  law  and  the  appeal 
must  be  taken  within  the  time  designated.1  The  provision 
which  limits  the  time  is  jurisdictional  in  its  nature.2     As  the 


1  Bornheimer  v.  Baldwin,  42  Cal.  27; 
McCourtney  v.  Fortune,  42  Cal.  3S7; 
Bishop  v.  The  Empire,  etc.,  Co.,  1  T-  & 
S.  (N.  Y.)  17;  Untereiner  v.  Miller,  29 
La.  Ann.  435;  Davis  v.  Vaughan,  7 
Rich.  (S.C.)  342:  Lavelle  v.  Skelly.  24 
Hun.  642;  Jarvis  v.  Hamilton,  37  Wis. 
87:  Badger  v.  Daniel,  S2  N.  C.  46S; 
Moore  v.  Ellis,  iS  Mich.  77;  White  v. 
Gilbert,  10  Neb.  539;  Clapp  v.  Hawley, 
97  N.  Y.610;  United  States  v.  Curry. 
6  How.  U.  S.  106;  Dowell  v.  Caruthers, 
26  Kan.  720;     Randolph  v.  Mauck,  7S 


Mo.  468;  Zeckendorf  7'.  Zeckendorf.  1 
Ariz.  401;  Joyce  v.  Dickey,  104  Ind. 
1S3;  Day  v.  City  of  Huntington.  7S 
Ind.  280:  McLaughlin  v.  State.  66  Ind. 
193;  Hoston  v.  Ducker,  86  Ky.  123. 

2  Cherry  Tp.  v.  Marion  Tp.,  96  Pa. 
St.  528;  Mason  v.  Gibson,  13  111.  App. 
463;  Clutter  v.  Riddle,  124  Ind.  500, 
2^  N.  E.  Rep.  6;  Starke  v.  Jenkins.  1 
Wash.  Ter.  421;  Westmoreland  Count  v 
v.  Conemaugh  Tp..  34  Pa.  St.  231 ;  Hoag 
t>.  Alleghany  City.  21  Pitts.  Law  Jour- 
nal, 46:     Wait  v.  Yan  Allen,  22  N.  Y. 


(91) 


92 


APPELLATE  PROCEDIRK. 


time  within  which  an  appeal  must  be  taken  is  jurisdictional  it 
results  that  the  court  can  not  ordinarily  enlarge  the  time  nor 
can  the  parties  extend  it  by  agreement.1  The  familiar  rule  that 
consent  can  not  confer  jurisdiction  precludes  the  parties  from 
extending  the  time,  and  as  the  time  within  which  an  appeal 
must  be  taken  is  a  matter  to  be  fixed  and  regulated  by  the  law- 
making power,  the  courts  can  not  enlarge  it.  There  is  a  clear 
distinction  between  cases  where  the  question  is  as  to  the  right 
to  entertain  jurisdiction  of  the  person  and  cases  where  the  party 
fails  to  bring  his  appeal  to  the  appellate  tribunal  within  the  time 
fixed  by  law.  In  the  one  case  the  party  may  voluntarily  sub- 
mit to  the  jurisdiction  of  the  court,  but  in  the  other  he  can  not 
create  jurisdiction  where  the  law  does  not  provide  for  it,  or  has 
otherwise  provided.2 

§  112.   Time  can  not  be  enlarged — The  rule  that  the  court  can 


319;  MacLachlan  v.  McLaughlin,  126 
111.  427.  [8  X.  E.  Rep.  544.  In  the  case 
of  Rose  v.  Tyrrell,  25  Wis.  563,  it  was 
held  that  a  statute  extending  the  time 
in  a  particular  case  was  unconstitution- 
al. See,  also,  Men weather  v.  Whitley, 
3S  Texas,  525. 

1  Flory  v.  Wilson,  83  Ind.  391;  Bun- 
tin  v.  Hooper,  59  I  ml.  589;   Day  v.  City 
i.t'   Huntington,  78   Ind.  2S0;    Joyce  v. 
Dickey,  104  Ind.  183;  Verges  v.  Roush, 
1   N\l).  113;   Patterson  v.  Woodland,  28 
Nth.  250,  44  N.  W.  Rep.  112;  Cogswell 
v.  Hogan,  1  Wash.  4,  23  Pac.  Rep.  835. 
See,  generally,  Douglass  v.  Neguelona, 
I  enn.  769,    14  S.  W.  Rep.  283:    Cal- 
lahan   v.    Portland,   etc.,    Co.,   17  Ore. 
1    Pac.  Rep.  S70;    Walsh   v.  The 
id  States,  23  Ct.  of  CI.  1;  Radford 
1,  131    U.  S.  392;    Herrick  v. 
Racine,  etc.,  Co.,    (.3  Wis.  93.     In  the 
•  if  Holloran  v.  The  Midland  Rail- 
way Co.  rind.).  2S  N.  E.  Rep.  549,  the 
doctrine  stated  in   the  text    is  explicitly 
affirmed.     It  is  also  impliedly  asserted 
in  the  cases  declaring  that   time    is   ju- 
risdictional where  appeals  are  taken  un- 
der  the   special    statute   governing   ap- 


peals in  matters  affecting  decedents' 
estnies.  Simons  v.  Simons,  28  N.  E.  Rep. 
702,  and  cases  cited.  See,  also,  the  cases 
cited  in  the  chapter  which  treats  of  ap- 
peals in  cases  affecting  the  estates  of 
decedents.     Post,  Chapter  XIV. 

2  In  the  case  of  Caallot -'.  Deetken,  113 
U.  S.  213,  it  was  said:  "  It  has  been  re- 
peatedly decided  by  this  court  that 
where  no  return  has  been  made  to  a 
writ  of  error  by  filing  the  transcript  or 
the  record  here,  either  before  or  during 
the  term  of  the  court  next  succeeding 
the  filing  of  the  writ  in  the  circuit  court, 
this  court  has  acquired  no  jurisdiction 
of  the  case,  and  the  writ  having  then 
expired,  can  acquire  none  under  that 
writ  and  it  must  therefore  be  dismissed." 
Yillabolos  v.  The  United  States,  6 
1  low.  81;  Castro  v.  The  United  States, 
3  Wall.  46;  Mussina  v.  Cavazos,  6 
Wall.  355,  35S;  Murdock  v.  Memphis, 
20  Wall.  590,  624.  If  the  question  of 
time  affects  the  jurisdiction  of  the  case 
and  not  merely  jurisdiction  of  the  per- 
son, then,  there  can  be  no  doubt  that 
our  cases  are  right  in  holding  that  the 
time  can  not  be  extended  by  agreement. 


WHEN   APPEAL  MAY  BE  TAKEN.  93 

not  enlarge  the  time  for  taking  an  appeal  must  be  regarded  as 
established,1  but  the  court  may,  nevertheless,  relieve  a  party  in 
the  proper  case  against  fraud  or  accident.2  In  relieving  a 
party  against  fraud  or  accident  the  court  does  not  extend  the 
time  for  taking  the  appeal  by  breaking  down  the  provisions  of 
the  statute  limiting  the  time  within  which  appeals  must  be  taken. 
The  principle  applied  is  a  familiar  one,  for  it  is  very  often  ap- 
plied to  the  statute  of  frauds  and  to  the  general  statute  of  limit- 
ations. The  fraud  of  a  party  will  prevent  him  from  taking  ad- 
vantage of  either  of  the  statutes  named,  and  so  it  will  in  cases 
where  the  statute  limits  the  time  for  taking  appeals.  Our  own 
court  has  given  recognition  to  the  doctrine  that  relief  will  be 
granted  where  the  appeal  is  prevented  by  the  fraud  of  the  ad- 
verse party.3  The  general  principle  is  asserted  and  enforced 
by  other  courts.4  Where  the  facts  are  such  that  the  court,  upon 
their  proper  presentation,  would  enlarge  the  time,  it  is  compe- 
tent for  the  parties  to  extend  it  by  agreement,  but  if  there  are 
no  such  facts,  the  time  can  not  be  extended  by  the  agreement 
of  the  parties.5 

§  113.  Cases  regarded  as  Exceptions,  peculiar  features  of— The 

cases  in  which  an  appeal  will  be  allowed  after  the  expiration  of 
the  time  fixed  by  the  statute  are  exceptional  ones,  and  their 
distinguishing  features  are  the  equitable  elements  which  enter 

1  It  may  not  be  improper  to  say  that  jurisdiction,  but  they  hold  that  fraud 
power  to  extend  the  time  for  appealing  may  prevent  the  operation  of  the  stat- 
in matters  affecting  decedents'  estates     ute. 

is  expressly  conferred  by  law.  *  Dobson  v.  Dobson,7  Neb.  296;  Fox 

2  We  mean  the  word  accident  to  carry  v.  Fields,  12  Heisk. '(Tenn.)  31;  United 
the  signification  attached  to  it  by  the  Lines  Tel.  Co.  v.  Stevens,  67  Md.  156; 
courts  of  chancery;  we  do  not  mean  Lake  v.  Halbert,  2  Dall  41;  Chaffee 
to  be  understood  as  intimating  that  re-  v.  Mcintosh,  36  La.  Ann.  S24;  Mc- 
lief  will  be  awarded  in  cases  of  ordinary  Ihhaney  v.  Holland, 1 1 1  Pa.  St.  634;  Mil- 
accidents,  or  in  cases  where"  there  is  ler  v.  Camp,  28  Neb. 412,  44N.  W.  Rep. 
lack  of  diligence,  or  in  cases  where  any  486;  Moyer  v.  Strahl,  10  Wis.  83;  Crad- 
culpable  fault  or  negligence  is  attribut-  dick  v.  Pritchett,  Peck  (Tenn.),  17; 
able  to  the  appellant.  Holt  v.  Edmondson,  31  Ga.  357;  Cong- 

3  Smythe  v.  Boswell,  117  Ind.  365;  don  v.  Congdon,  59  Vt.  597,  S.  C.  10 
Boswell  v.  Boswell,  117  Ind.  599.   These  Atl.  Rep.  732. 

cases  recognize  the  rule  that  if  the  ap-  5  Climie  v.  Odell.  20  Mich.  12.  See 
peal  is  not  taken  in  time,  there  is  no     Fairchild  v.  Daten,  38  Cal.  286. 


!    1  APPELLATE   PROCEDURE. 

into  them.  Without  the  presence  of  these  elements  the  time 
fixed  by  the  statute  can  not  be  extended.  These  controlling 
elements  must  be  shown  clearly  and  strongly  or  the  statute  will 
be  enforced  as  it  is  written,  for  the  rule  is  firmly  settled  that  a 
party  who  seeks  to  escape  the  provisions  of  the  statute  must 
have  a  very  strong  and  clear  case. 

§  114.  Time  not  extended  to  the  Party  in  Fault— If  the  appel- 
lants fault  has  prevented  an  appeal  within  the  time  allowed  by 
law,  the  court  can  not  aid  him,  for  the  court  can  only  interfere 
where  the  principles  of  equity  authorize  the  interference,  and 
where  the  failure  was  due  entirely  to  causes  which  the  party 
could  not  control.1  A  mistake  as  to  matter  of  law  will  not  be  a 
sufficient  excuse.2  The  decisions  declare  that  there  is  a  differ- 
ence between  the  rules  of  the  court  and  the  provisions  of  a 
statute,  and  that  the  provisions  of  a  mandatory  statute  can  not 
be  relaxed.3 

§  115.  Diligence  exacted — The  appellant  who  seeks  to  secure 
an  appeal  after  the  statutory  time  has  expired  asks  extraordinary 
relief,  and  he  must  act  with  diligence  and  do  promptly  and  com- 
pletely what  he  can  to  prevent  further  delay  ;  if  he  does  not,  his 
remissness  will  deprive  him  of  an  appeal,  although  if  he  had 
proceeded  more  diligently  he  might  have  avoided  the  effect  of 
the  first  delay.  It  is  necessary  for  him  to  file  the  transcript  in 
the  appellate  tribunal  and  with  it  a  verified  petition4  showing 
the  facts  on  which  he  relies  as  excusing  his  failure  to  appeal 
within  the  time  designated  by  the  statute.  The  transcript,  to- 
gether with  the  assignment  of  errors,  should  be  filed  with  the 
petition  or  before  its  filing,  because  this  is  essential  to  the  au- 

1  Contee  v.  Pratt.  9  Md.  67;  Lin-  Rivers,  20  New  159,  18  Pa.  Rep.  753; 
coin,  etc.,  Works  v.  I Iall.  -7  Neb.  874,44  Short  v.  Sparrow, 96  X.  C.  34S,  S.  C.  2 
N.  W.Rep.45.     See  Chase  v.  Bates,  81     S.  E.  Rep.  233. 

Me.  is.-,  s.  C.  [6  Atl.  Rep.  542;  Jack-  3  Yturbide  :■.  United  States.  22  How. 

1     iddard,  1  Mass.  230.  (U.  S.)  290;  Doolin<*  v.  Moore,  20  Cal. 

2  Ilikv  v.  Thompson,  t,2  So.  Car.  5S2;  141;  Van  Steemvyck  v.  Miller,  iS  Wis. 
Calvo  v.  Railroad  (So.  Car.),  10  S.  E.  320;  Smith  v.  State,  4S  Ark.  148,  2 
Rep. 389.     See  Wallace  v. Carter,  32 So.  S.  W.  Rep.  661. 

Car.  314.  9  S.  E.  Rep.  659;   Burbank  v.        4 Jackson  v.  Goddard,  1  Mass.  230. 


WHEN  APPEAL  MAY  BE  TAKEN, 


95 


thority  of  the  appellate  tribunal,1  and  because  it  is  proper  that 
the  appellant  should  in  this  mode  manifest  his  purpose  and 
ability  to  proceed  promptly.2  Notice  should  be  given  the  ad- 
verse party,  for  he  is  under  no  duty  to  take  heed  of  any  pro- 
ceedings of  which  he  is  not  duly  notified.3  There  may,  of  course, 
be  cases  where  the  transcript  can  not  be  filed  with  the  petition, 
as,  for  instance,  where  the  clerk  refuses  to  prepare  one,  but,  un- 
less some  excuse  is  shown,  the  transcript  together  with  the  as- 
signment of  errors  should  be  filed  before  or  at  the  time  the 
petition  is  filed. 

§  116.  Petition  for  leave  to  Appeal  after  the  expiration  of  the 
Time  limited— A  petition  for  leave  to  appeal  after  the  expiration 
of  the  time  fixed  by  law,  must  as  we  have  indicated,  present  a 
clear  and  strong  case.4  The  requisites  of  such  a  petition  make 
it  necessary  that  it  should  be  drawn  with  care,  for  it  can  not  be 
aided  by  intendment.  It  ought  to  show  substantial  merit  in  the 
appeal,  and,  to  do  this,  must  show  the  nature  of  the  questions 
involved.  It  will  not  be  sufficient  to  refer  generally  to  the 
transcript,  for  the  petition  must  be  good  on  its  face.  The  facts 
constituting  the  excuse  for  the  failure  to  appeal  within  the  time 
fixed  by  statute  must  be  specifically  and  certainly  pleaded  ;  it 
will  not  be  sufficient  to  plead  mere'  conclusions  or  to  plead  by 
way  of  recital.  Clear,  direct  and  positive  statements  of  facts 
are  required. 


1  The  transcript  is  essential  because  money  in  cases  of  specific  performance 
appellate  tribunals  decide  appeals  upon  and  the  like. 

the  record,  and  where  there  is  no  rec-  s  The  proceeding  to  secure  an  appeal 

ord  there  can,  as  a  general  rule,  be  no  after  the  time  limited  is  essentially  an 

appellate  jurisdiction.  original  one.     See  antt\  §  112,  n. 

2  The  published  decisions  do  not  cover  4  This  is  so  because  the  party  who 
this  point  so  far  as  we  can  find,  but  it  asks  such  relief  must  make  a  case 
has  long  been  the  practice  to  require  which  calls  into  exercise  the  inherent 
the  filing  of  the  transcript  and  assign-  equity  power  of  the  court,  and  to  do 
ment  of  errors  before  entertaining  any  this  successfully  he  must  make  such  a 
petition  for  injunction,  mandate  or  leave  showing  as  creates  a  case  in  the  nature 
to  appeal.  The  principle  which  justi-  of  an  original  suit.  It  must,  as  to  all 
fies  this  practice  is  analogous  to  that  matters  alleged  by  way  of  excusing  the 
which  requires  a  tender  of  a  deed  or  failure  to  perfect  the  appeal  in  time,  be 

an  original  auxiliary  proceeding. 


9ij  APPELLATE  PROCEDURE. 

§  117.  Rule  where  the  delay  is  caused  by  the  act  of  the  Court — 
It  is  said  in  general  terms  by  the  authorities  to  which  we  have 
referred,  and  by  many  more,  that  the  time  for  taking  an  appeal 
can  not  be  extended  by  agreement  or  by  order  of  the  court.1 
but,  as  we  have  shown,  this  rule,  general  and  firmly  settled  as 
it  is,  does  not  always  preclude  an  appeal  and  to  the  instances 
upon  which  it  does  not  fully  operate  we  add  another  of  a  dif- 
ferent nature.  Where  the  time  is  lost  without  the  fault  of  the 
party  and  solely  by  reason  of  the  action  or  non-action  of  the 
court,  the  statute  does  not  operate  because  the  loss  of  time  is 
not  attributable  to  the  acts  of  the  parties.  The  rule  that  the 
delay  or  wrong  of  the  court  shall  not  prejudice  a  party,  rests 
upon  the  maxim,  "An  act  of  the  court  shall  prejudice  no  man."2 
Where,  however,  the  fault  of  the  party  concurs  with  that  of  the 
court  the  maxim  will  not  prevail  to  save  an  appeal  not  taken 
within  the  time  fixed  by  law.3 

§  118.  When  the  Time  begins  to  run — The  general  rule  is  that 
there  must  be  an  entry  of  judgment  before  an  appeal  can  be 
taken,  and  it  must  follow  that  until  the  judgment  is  entered  the 
time  within  which  an  appeal  must  be  taken  does  not  begin  to 
run.  As  an  appeal  taken  before  an  entry  of  judgment  is  pre- 
mature, it  may  be  dismissed  on  motion.  There  is  some  con- 
flict in  the  adjudged  cases,  but  the  decided  weight  of  authority 
supports  the  rule  we  have  stated.4     It  seems  clear  upon  prin- 

1  Salles  v.  Butler, 27  N.Y.638;  Clapp  *  Providence,  etc.,  Co.  v.  Goodyear,  6 

-.  Hawley,97  N.  Y.610;  Miller  t/.  Shall,  Wall.  153;  Milwaukee,  etc.,Co.r.Pabst, 

67  Barb.  146;   Morrison  v.  Morrison,  16  A4  Wis.  244;  Kimple  v.  Conway, 69 Cal, 

Hun.  507,  511;  Fry  v.  Bennett,  16  How.  71;    Schroder  v.  Schmidt,  7]    Cal 

Pr.  385;   People  p.Eldridge,  7  How.  Pr.  Thomas  v.  Anderson,  55  Cal.  43;  Valle 

Bryant  v.   Bryant,  4  Abbott's  Pr.  v.    Harrison,   93  U.     S.    23$;    Polleys 

N.  S  v.  Black  River,  etc.,  Co.,  113  U.  S.  81; 

1  Brooms  Legal  Maxims  (8  Am.  Ed.  .  Radford  v.  Folsom,  123  I".  S.  725;   Ex- 

121.     The   author  cites  many    English  lev   v.  Berryhill,  36   Minn.   117.  30  N. 

showing  the  operation  and    orce  W.   Rep.  439.      See,   generally,   In   re 

of  the    maxim,   and    to    them   may    be  Fifteenth    A\..  54   Cal.  179;   McLaugh- 

added   the    following    American   eases:  lin  V.  Doherty,  54  Cal.  519;     First   Nat. 

[y  v.  Watson,  64  N.  II.  162,  9  Atl.  Bank   v.  Gary,  \.\  So.  Car.  571;  Black 

Rep.  794,  817;  Doe  v.  Parker,  3  Sm.  &  v.  Peters.  64  Ga.  628;   Savings,  etc.,  Co. 

M.,    114;    Tucker   v.  Gordon,   7   How.  v.    Morton,   63   Cal.  310;    Fehring    v. 

(Mi  Swineford,  33   Wis.  550;    Johannes  v. 

3  Freeman  v.  Tranah,  12  C.  B.  406.  Young,  42  Wis.  401. 


WHEN    APPEAL   MAY  BE  TAKEN.  97 

ciple  that  the  rule  stated  must  be  the  correct  one,  for  until  there 
is  an  entry  of  judgment  there  is  no  authentic  record  evidence 
of  a  final  disposition  of  the  case,  and  that  there  is  a  final  judg- 
ment must,  as  a  general  rule,  appear  from  the  record.  It  has, 
however,  been  held  that  where  the  entry  is  of  the  wrong  date, 
and  it  is  subsequently  corrected  by  nunc  -pro  tunc  entry  so  as  to 
make  the  record  show  the  true  date,  the  time  for  appealing  runs 
from  that  date.1  But  this  doctrine  is  one  to  be  cautiously  ap- 
plied, if,  indeed,  it  can  be  defended  at  all,  for  the  adverse  party, 
who  is  without  fault  and  is  misled  by  an  entry,  ought  not  be  de- 
prived of  his  right  of  appeal  by  changing  the  date  of  the  judg- 
ment. If  he  has  full  knowledge  of  the  facts  and  is  aware  of  the 
true  date,  and  of  the  mistake  in  the  entry,  then  it  is  probable 
that  he  is  in  no  situation  to  complain,  but  if  he  is  free  from  fault 
or  negligence  and  is  misled  by  the  entry  that  was  originally 
made  he  ought  not  to  be  made  to  suffer.2 

§  119.   Final  judgment  and  entry — Time  commences  to  run  from — 

The  right  to  appeal,  as  a  general  rule,  dates  from  the  time  that 
a  complete  judgment  is  rendered  and  recorded.3  This  rule  is 
the  true  one  since  as  long  as  there  is  no  final  judgment  it  is 
within  the  power  of  the  trial  court  to  change  its  rulings,  and  as 
long  as  this  power  exists  the  case  must  be  within  the  jurisdiction 
of  the  lower  court.  A  case  can,  as  a  general  rule,  only  pass 
from  the  jurisdiction  of  the  court  of  original  jurisdiction  by  a 
final  judgment.  It  seems  to  necessarily  follow  that  where  a 
motion  in  arrest,  or  for  a  venire  dc  novo,  or  for  a  new  trial  re- 
mains undisposed  of  there  is  no  right  of  appeal,  since,  as  will  be 

1  Anderson  v.  Mitchell,  58  Ind.  592;  States  v.  Gomez,  1  Wall.  690;  Winters 
Gray  v.  Palmer,  28  Cal.  416;  Genella  v.  Ethell,  132  U.  S.  207;  Richardson 
v.  Relvea,  32  Cal.  159.  v.  Rogers,   37    Minn.    461,    35    N.  W. 

2  In  Coon  T'.Grand  Lodge,  76  Cal.  354,  Rep.  270.  In  Camblos  v.  Butterfield, 
iSPac.Rep.3S4,it  was  held  that  the  right  15  Abbott  Pr.  R.  (N.  S.)  197,  it  was 
to  appeal  does  not  mature  until  the  held  that  where  the  judgment  com- 
judgment  is  entered,  and  that  a  nunc  pletefy  ends  the  litigation  he  must  ap- 
fro  tunc  entry  fixing  the  date  prior  to  peal  from  that  judgment  within  the 
the  appeal  does  not  change  the  rule,  time  prescribed  without  waiting  for  the 
See  Credit  Co.  v.  Arkansas,  etc.,  Co.,  ultimate  judgment.  It  mav  well  be 
128  U.  S.  258.  doubted  whether  this  doctrine  can  have 

3  State  v.  Burns,  66  Mo.  227;  United  a  general  application. 

7 


98 


AIT!   I.I.  A  I  E    PROCEDURE. 


hereafter  shown,  two  courts  can  not  have  jurisdiction  of  the  same 
case  at  the  same  time,1  save  in  very  rare  instances.  It  is  in 
accordance  with  this  doctrine  that  it  is  held  that  where  the  court 
decides  to  reconsider  its  judgment  the  right  of  appeal  dates 
from  the  ultimate  judgment,2  and  the  same  rule  applies  where 
there  is  an  amended  decree.3  Upon  the  same  principle  it  has 
been  held  by  our  own  court,1  and  by  other  courts, 5  that  where 
there  is  a  pending  motion  for  a  new  trial  the  right  of  appeal 
does  not  mature  until  there  is  a  ruling  denying  the  motion. 

§  120.  Independent  actions — It  is  to  be  remembered  that  a 
complaint  for  a  new  trial  filed  after  the  term  is  an  independent 
proceeding,6  and  hence  what  is  said  in  the  preceding  paragraph 
can  have  no  application  to  such  a  case.  It  can  not,  indeed, 
apply  to  cases,  whatever  their  nature,  in  which  the  motion  is  a 
purely  collateral  one,  or  one  introducing  new  elements  into  the 
case.  The  reason  for  the  rule  fails  in  such  cases  as  those  indi- 
cated, inasmuch  as  the  judgment  in  the  cases  falling  under  the 
rule  disposes  of  all  the  matters  before  the  court  at  the  time  it  was 


1  See  "  Effect  of  the  Appeal." 

2  First  Nat.  Bank  v.  Briggs,  34  Minn. 
266.  A  similar  doctrine  was  asserted  in 
Bowers  v.  M'Nutt,  5  Blackf.  231. 

3  United  States  :•. Gomez,  1  Wall.  690, 
699.  In  Owen-,  v.  Crossett,  104  III.46S, 
it  was  held  that  where  a  judgment  was 
pronounced  in  vacation  the  right  of  ap- 
peal accrued  at  the  next  ensuing  term. 

*  New  York,  etc.,  Co.  v.  Doane,  105 
End.  92;  Colchen  v.  Ninde,  120  Ind.SS, 
90.  In  the  first  of  the  cases  cited  it  was 
said:  "A  motion  for  a  new  trial  is  not 
a  collateral  one,  but  is  one  directly 
connected  with  the  judgment,  and  is 
essential  to  present  tor  review  errors 
occurring  in  the  trial,  and  so  long  as 
it  remains  undisposed  of  there  can  be 
no  final  judgment  within  the  meaning 
of  the  statute  regulating  appeals.  A 
pending  motion  tor  a  new  trial  keeps 
the  cause  in  the  trial  court,  provided, 
of  course,  that  the  motion  was  reason- 
ably filed." 


5  Webster  v.  Spindler,  36  Mo.  App. 
355;  Phillippi  v.  McLean,  5  Mo.  App. 
580;  Hoggs  v.  Caldwell  County,  28  Mo. 
586;  Railroad  Co.  v.  Bradleys,  7  Wall. 
575;  Doss  v.  Tyack,  14  How.  297, 
Wheeler  v.  Harris,  13  Wall.  51.  In 
Murdock  v.  District  of  Columbia,  23 
Ct.  of  CI.  41,  it  was  said,  speaking  of  a 
motion  for  a  new  trial,  that,  "  This  mo- 
tion, by  the  general  rules  of  law  on 
the  subject,  undoubtedly  suspended  the 
finality  of  the  judgment,  leaving  the 
same  in  the  control  of  the  court  to  de- 
termine whether  it  should  be  disturbed 
or  should  stand,  and  it  suspended  the 
obligation  as  to  the  time  within  which 
to  file  an  appeal  until  the  final  disposi- 
tion of  the  matter,"  citing  Brockett  :•. 
Brockett.j  How.(U.S.)238;  Slaughter- 
house Cases,  10  Wall.  289;  Cambuston 
v.  United  States,  95  U.  S.  2S7.  See 
Mann  v.  Haley,  45  Cal.  63. 

6  Hines  v.  Driver,  89  Ind.  339;  Har- 
vev  v.  Kink,  I  1 1  Ind.  249. 


WHEN   APPEAL  MAY   BE  TAKEN.  99 

rendered,  and  this  is  sufficient  to  impress  upon  it  the  character 
of  a  complete  and  final  judgment.  If  the  judgment  does  dis- 
pose of  all  pending  matters  it  is  final,  and  may  be  appealed 
from,1  but  if  it  leaves  any  pending  matter  essential  to  a  complete 
disposition  of  the  case  to  be  disposed  of,  it  is  not  final  in  such  a 
sense  as  to  authorize  an  appeal.2 

§121.  When  the  right  of  Appeal  matures — The  disposition  of 
pending  motions  in  cases  where  they  terminate  the  particular 
controversy  ends  the  authority  of  the  trial  court  in  the  particular 
case,  and  when  this  occurs  the  right  of  appeal  matures.  What 
is  done  afterwards  can  not  effect  the  case  thus  ended  by  a  rul- 
ing upon  all  pending  motions.  The  principle  is  not  broken 
upon  by  the  fact  that  the  party  may  pursue  a  new  and  distinct 
remedy.  The  rule  we  assert  is  well  illustrated  by  the  case 
wherein  it  was  held  that  where  a  new  trial,  moved  for  after  the 
close  of  the  term,  was  granted,  but  the  order  granting  it  was 
subsequently  vacated,  the  right  of  appeal  did  not  date  from  the 
time  judgment  in  the  second  trial  was  rendered,  but  from  the 
date  of  the  original  judgment.3  Nor  is  the  general  rule  that  a 
party  must  prosecute  his  appeal  within  the  time  prescribed 
avoided  by  showing  that  there  have  been  other  ineffectual  ap- 
peals.4 

§  122.  Computation  of  Time — The  beginning — It  is  laid  down 
as  a  general  rule,  as  we  have  elsewhere  said,  that  time  is  to  be 
computed  from  the  date  of  the  entry  of  the  judgment.5     This 

'Lodge   v.   Tweell,   135  U.    S.   232;  The  difference  is  clearly  pointed  out  in 

Sweet  f.Merki,  27  Ill.App.  245;  Chamb-  the  case  of  Webster  v.  Spindler,  36  Mo. 

ers  v.   Hoover,  3  Wash.  Ty.  20,   S.  C.  App.  355.     That  case  also  collects  cases 

13  Pac.  Rep.  905.  showing  that  the  matter  of  time  is  so 

2  Bush  v.  State   (Miss.).  6  So.  Rep.  far  jurisdictional    that   it   can    not   be 

647;   Piedemont  Manf.  Co.  v.  Buxton,  waived  by  consent. 

105N.  C.74;   State  v.  Hightower,  33  S.  3  Jenkins  v.  Corwin,  55  Ind.  21.     See 

C.  59S,  11  S.  E.  Rep.  579.     In  a  former  Hardin   v.  Watson,  85  Tenn.  593,  4  S. 

chapter   (Chapter  V,    "  What  may  be  W.  Rep.  37. 

Appealed  from  ")  we  marked  the  differ-  *  Long  v.  Emery,  49  Ind.  200. 

ence  between  the  finalty  of  a  judgment  5  Harshman   v.   Armstrong,  43   Ind. 

when  considered    with    respect    to  the  126;     Crawford  v.  Prairie,  etc.,  Co.,  44 

right  to  appeal  from  it  and  when  con-  Ind.  361;     Wright  v.   Manns,  ill   Ind. 

sidered    from    another    point    of  view.  422;   Hursh  v.  Hursh,99  Ind.  500.     See, 


100  APPELLATE    PROCEDURE. 

seems  correct,  inasmuch  as  there  is  no  authentic  evidence  of 
the  existence  of  a  judgment  until  it  is  entered  of  record  in  due 
form,  and  yet  it  is  difficult,  if  not  impossible,  to  reconcile  with 
this  general  rule  the  decision  that  when,  by  a  mine  pro  tunc 
entry,  a  judgment  is  given  a  retrospective  effect,  the  right  to 
appeal  ripens  with  the  date  fixed  by  the  nunc  pro  tunc  entry. 
It  is  apparent,  at  all  events,  that  the  doctrine  that  the  entry 
may  have  a  retroactive  effect  upon  the  right  of  appeal  is  one  to 
be  limited  and  to  be  sparingly  and  grudgingly  applied.  An 
entry,  in  due  form,  of  a  judgment  should,  it  seems  to  us,  be 
deemed  prima  facie,  at  least,  to  express  the  true  date  of  the 
judgment. 

§  123.  Collateral  and  Independent  matters — The  fact  that  a 
judgment  in  an  independent  and  distinct  action  or  proceeding 
is  remotely  or  incidentally  connected  with  a  former  judgment 
does  not  require  that  the  time  for  appealing  shall  be  reckoned 
from  the  date  of  the  original  judgment.  Where  the  original 
judgment  necessarily  and  directly  comes  in  question,  then,  the 
time  the  right  of  appeal  accrues  is  the  date  of  that  judgment. 
But  there  may  be  a  distinct  and  independent  proceeding  not- 
withstanding the  fact  that  it  may  grow  out  of  a  judgment  ren- 
dered in  an  action  between  the  same  parties.  Thus  a  judgment 
quashing  an  execution  may  be  independent  of  the  original 
judgment,  and,  if  it  is,  it  may  be  appealed  from  within  the 
time  prescribed  by  law.1 

§  124.   How  the  date  of  the  Final  Judgment  is  Ascertained — The 

date  of  the  rendition  of  the  judgment  is  to  be  ascertained  from 
the  record.  The  general  rule  is  that  all  information  of  that  na- 
ture must  be  conveyed  by  the  record  to  the  appellate  tribunal. 

ally,  Glore  v.  Hare,  4   Neb.   131;  Switch   Co.,   75   Cal.  426,    7   Am.    St. 

Bennett  v.  Keehn,  67  Wis.  154;    Bald-  Rep.    183;    Gray  v.    Winder,    77    Cal. 

Scott,  48  Texas,  178;  Bailey  v.  525,  20  Pac.   Rep.  47;    In  re  Fisher's 

Lubke,  S  Mo.   App.   57;     Semple,  etc.,  Estate,  75  Cal.  523,  17   Pac.  Rep.   640; 

Co.    -•.    Thomas,     10    Mo.    App.   457;  McClintock  v.  Theiss,  74  Ind.  200. 

Atchison,  etc.,  Co.  v.  Dougan,  39  Kan.  1  Wright  v.  Rogers,  26  Ind.  218;  Mc- 

1S1;     Kuhnerl   v.  Conde,  39  Kan.  265,  Allister  v.  The  State,  81  Ind.  256. 
18  Pac.  Rep.  193;    Heilbron  v.  Fowler 


WHEN    APPEAL   MAY   BE  TAKEN.  \n\ 

The  recitals  of  the  record  are  conclusive,  for,  as  a  general  rule, 
the  record  controls  the  decision  on  appeal.  What  appears  of 
record  ordinarily  imports  absolute  verity  and  the  parties  will 
not  be  heard  "to  aver  against  it."  Errors  in  the  record  may 
be  corrected  in  the  appropriate  method,  but  until  the  proper 
steps  are  taken  to  correct  them  and  the  correction  is  duly  made,  it 
is  conclusive  upon  the  question  of  the  time  the  judgment  was 
rendered  as  well  as  upon  all  matters  which  the  law  requires 
shall  appear  of  record.1 

§  125.  Day  the  Judgment  is  entered  excluded — The  general  rule 
for  the  computation  of  time  is  that  the  day  on  which  the  judg- 
ment was  rendered  shall  be  excluded,  and  the  day  on  which 
the  last  act  effectuating  the  appeal  is  done  shall  be  included.2 
This  rule  is  applied  in  matters  of  procedure  generally,3  and 
should  be  steadily  adhered  to  in  appellate  practice  for  the  sake 
of  uniformity  and  certainty,  if  for  no  other  reason.  The  ear- 
lier cases  asserted  a  different  rule  and  for  a  time  there  was 
much  uncertainty,  but  it  has  long  been  held  that  the  first  day  is 
to  be  excluded  and  the  last  included  so  that  the  question  can 
not  be  regarded  as  an  open  one.4  The  statute  requires  that  the 
rule  should  be  that  stated,  for  it  is  general  in  its  terms.5 

§126.   Meaning  of  the  words  "Years"  and  "Months"  — The 

term  "years"   and   the  term   "months"   are   declared  by  our 

1  McAllister:'.  The  State.Si  Ind.256.  Towell   v.  Hollweg,  Si  Ind.  154;    Wo- 

2  Wright  v.  Manns,  in  Ind.  422;  mack  v.  McAhren,  9  Ind.  6;  Martin  v. 
Hursh  v.  Hursh,  99  Ind.  500;  Noble  Reed,  9  Ind.  1S0;  Blair  v.  Davis,  9  Ind. 
v.  Murphy,  27  Ind.  502;  State  v.  236;  State  v.  Thorn,  28  Ind.  306; 
Thorn,  28  Ind.  306;  Byers  v.  Hickman,  Tucker  v.  White,  19  Ind.  253;  Fox  v. 
36  Ind.  359;  Faure  --.The  United  States  Allensville,  etc.,  Co.,  46  Ind.  31. 
Express  Co.,  23  Ind.  48;  ( lallt  v.  Finch,  *  The  rule  as  now  established  was  as- 
24  How.  Pr.  R.  193;  State  v.  Weld,  39  serted  in  Hathaway  v.  Hathaway,  2  Ind. 
Minn.  426,  40  N.  W.  Rep.  561;  State  v.  513,  and  in  Swift  v.  Tousey,  5  Ind.  196, 
Town  of  Winter  Park,  25  Fla.  371,  5  but  the  contrary  was  held  in  Jacol 

So.  Rep.  81S;   Deere,  etc.,  Co.  v.  Hucht,  Graham.  1  Blackf.  392,  Ryman  v.  Clark, 

32  Mo.  App.  153;     Seward  v.  Haydfen,  4  Blackf.  329,  and  Long"  v.  M'Clure,  5 

105  Mass.  158.  Blackf.  319. 

3  Vogel  v.  State,  107  Ind.  374;  Hill  v.  5  R.  S.  1SS1,  §  12S0;    Schoonover  v. 
Pressley,  96  Ind.  447;    Benson  v.  Ad-  Irwin,  58  Ind.  287. 

ams,   69   Ind.   353,   35    Am.  Rep.  220; 


102 


APPELLATE   PROCEDtTR.fi, 


statute  to  mean  months  and  years  of  the  Christian  calendar.1 
The  month  February  is  ordinarily  reckoned  as  a  calendar 
month,  hut  when  a  given  number  of  days  are  specified  in  a 
statute  regard  is  to  be  had  to  the  actual  number  of  days  of  that 
month.  February  of  the  leap  year  has,  according  to  the  latest 
decision  upon  the  subject,-  twenty-nine  legal  days,  for  the  28th 
and  29th  are  to  reckoned  as  separate  law  days  and  not  as  one 
day.  To  reach  the  conclusion  that  the  28th  and  29th  days  of 
February  of  the  leap  year  each  constituted  a  full  day  in  law  the 
court  was  compelled  to  overrule  several  decisions.3  While  the 
departure  from  the  rule  stare  decisis  seems  hardly  defensible, 
yet  it  must  be  owned  that  the  decision  asserting  that  the  two 
days  are  distinct  in  law  as  well  as  in  fact  is  grounded  in  rea- 
son.1 It  is  only  when  a  period  of  time  less  than  a  month  is 
specified,  or  when  time  is  specified  by  days  that  the  question 
whether  the  28th  and  29th  of  February  are  to  be  computed  as 
one  day,  or  as  two  days,  becomes  material.' 

£  127.    Noil  Judicial  Days — The  common  law  rule  is  that  Sun- 
da}r  is  not  a  judicial  day.6     The  common  law  rule  that  Sunday 


1  R.  S.  1SS1,  §  240.  See,  generally, 
1  man  v.  State,  2  Ind.91;  Sheets  v. 
Selden,  2  Wall.  177;  Union  Bank  v.  For- 
rest,  3Cranch  C.  C.218;  (imss  v.  Fow- 
ler, 21  Cal.392;  Commonwealth  :•.  Le- 
high  Valley  Co.,  12.,  Pa.  Si.  .129,  iS 
Atl.  Rep.  406.  For  definition  of  the 
term,  "a  week  of  time,"  see  ///  re  Ty- 
13  Col.  482.  11  Pac.  Rep.  Sio. 
"  Day  and  day-."  City  of  Denver  V. 
Pearce,  13  Col.  383.  12  Pac.  Rep.  774. 
Si.-  not  isl   named.     6    Law 

Rep.,  Ann.,  541.  See,  generallj',  Hed- 
derich  v.  State,  101  [nd.  1564;  Gibson  v. 
Keyes,  1  1 2  [nd.  ;68;  Benson  v.  Adams, 
I  tale's  Appeal,  1 1  Pa.  St. 
I  [aines  v.  State,  7  Tex.  App.  30. 
I  '  tinction  betw  een  "day  "  and  "  d 
Bemenl  v.  Trenton,  1  tc,  U<>..  3  Vr.  ( N. 
J.)  513,515;  Woolrych  on  Legal  Time, 
123.      Designation    of    time    in    a    writ. 


Searles  v.  Averhoff,  2S  Neb.  668,  \\  X. 
W.  Rep.  S72.  See,  generally,  W'oods 
v.  Brezzinski,  57  Conn.  471,  iS  Atl. 
Rep.  252. 

2  Ilelphenstine  r.Vincennes  National 
Hank.  65  Ind.  582. 

3  Swift  v.  Tousey,  5  Ind.  196;  Craft 
v.  The  State  Hank  of  Ind.,  7  Ind.  219; 
Kohler  :•.  Montgomery,  17  Ind.  220; 
Rotter  v.  Holloway,  43  Ind.  35. 

4  10  Central  Law  Journal,  158. 

5  King  v.  Worminghall,  6  M.  &  S. 
350;  King  v.  Aekley,  3  Term  Rep.  250. 
See,  generally.  Lister  V.  Stanley,  I 
Mod.  112. 

6  Mr.  Woolrych  -ays:  "  So.  where  a 
notice  of  a  motion  is  to  be  made  on 
Monday  it  was  held  that  it  ought  to  be 
served  on  Friday,  inasmuch  for  that 
purpose    Sunday    is    no    day."     Legal 

Time.  96. 


WHEN"  APPEAL   MAY    BE  TAKEN.  10;; 

is  "no  day,"  is  yet  enforced  in  many  cases,1  but  it  does  not 
prevail  so  fully  and  generally  as  it  did  formerly.  Where  the  last 
day  specified  by  the  code  of  practice  falls  on  Sunday  it  is  to  be 
excluded.1'  Intervening  Sundays  are  to  be  counted,"'  but  if  the 
last  day  specified  in  matters  relating  to  practice  and  procedure, 
however  it  may  be  as  to  contracts,  is  Sunday,  the  act  may  be 
done  on  the  following  day.' 

§  128.  The  Appeal  must  be  fully  perfected  witliiu  the  Time  pre- 
scribed— The  appeal  must  be  fully  perfected  within  the  time 
prescribed  by  the  statute  ;  it  is  not  enough  to  take  some  steps 
toward  effecting  an  appeal,  for  all  that  the  statute  requires  to  be 
done  in  order  to  perfect  an  appeal  must  be  performed  within 
the  time  limited.5  An  appeal  can  not  be  justly  said  to  be  taken 
where  a  thing  essential  to  its  effectiveness  remains  undone,  and 
what  is  essential  must  be  done  within  the  time  limited,  inas- 
much as  there  is  no  warrant  or  authority  for  doing  it  after  the 
expiration  of  the  time  prescribed  by  law.  This  consideration 
seems,  in  itself,  sufficient  to  justify  the  conclusion  we  have 
stated,  but  is  by  no  means  the  only  one  by  which  it  is  sup- 
ported. The  right  to  an  appeal  is  granted  upon  the  condition 
that  all  of  several  designated  acts  shall  be  performed,  and  not 
upon  the  condition  that  any  number  of  the  entire  series  of  acts 
designated  less  than  the  whole  shall  be  performed  by  the  party 
asserting  the  right.  The  time  prescribed  is  for  taking  the  ap- 
peal, not  merely  for  doing  some  act  essential  to  an  appeal 
within  the  prescribed  time  and  omitting  others.  If  a  party 
may  omit  one  step,  or  delay  one  step,  until  after  the  expiration 

1  Street  v.  United  States,  133  U.  S.  is  one  year,  whether  the  appeal  be  by 
299;  Porter  v.  Pierce,  120  N.  Y.  217.  the  whole  or  a  portion  of  the  co-parties, 
S.  C.  7  Law.  Rep.  Ann.  847;  Quaker  and  the  appeal  must  be  perfected  within 
v.  State,  120  Ind.92;  22  N.  E.  Rep.  100;  that  time."  Among  the  cases  eited  were 
Carothers  v.  Wheeler,  1  Ore.  194;  Arbuckle  :'.  Swim,  123  Ind.  208,  24  X. 
Miehie  :\  Miehie.  17  Gratt.  ( Va.)  109.  E.    Rep.    105;    Hawkins    :.    McDougal, 

2  R.  S„  §  12S0.  126  Ind.  544,  25  N.  E.  Rep.  70S;  Joyce 

3  Womack  r.  McAhren,  9  Ind.  6.  :■.  Dickey,   104  Ind.  183,  3  N.  E.  Rep. 

4  Williams  v.  State,  5  Ind.  235.  252;   Herzogg  v.  Chambers,  61  Ind. 333. 

5  Ilolloran  v.  Midland  Railway  Co.  Then'  may,  of  course,  he  cases  where 
(Ind.),  j8  X.  E.  Rep.  ^49.  In  the  case  delay  in  perfecting  an  appeal  can  be  ex- 
cited it  was  -aid:  ••The  time  allowed  eluded,  but  such  cases  form  exceptions 
within    which   an   appeal   may  he  taken  to  the  general  rule. 


104 


APPELLATE  PROCEDURE. 


of  the  time,  he  may  omit  or  delay  another  and  another.  To 
establish  a  rule  which  would  tolerate  such  a  practice  would 
destroy  all  certainty  and  uniformity  and  build  up  a  deformed 
and  distorted  system  of  mere  arbitrary  instances.  A  worse 
system  than  that,  or  one  more  directly  opposed  to  sound  principle, 
can  scarcely  be  imagined.  The  reasons  supporting  our  conclu- 
sions seem  so  cogent  that  it  is  hardly  worth  while  to  look  to  the 
adjudged  cases,  but  if  they  are  considered,  additional  support 
will  be  found  to  be  yielded  by  them  to  that  conclusion.  The 
matter  of  tune  is,  as  the  cases  declare,  and  as  we  have  shown, 
jurisdictional,1  and,  as  it  is  jurisdictional,  it  must  follow  that  the 
whole  appeal,  not  merely  part  of  it,  must  be  perfected  within 
the  time  limited,  for  there  is  no  authority  for  doing  anything 
essential  to  the  validity  of  the  appeal  after  that  time.  Where 
the  law  provides  that  acts  shall  be  done  within  a  fixed  period, 
acts  done  after  the  expiration  of  that  period  are,  as  it  has  been 
often  held,  of  no  effect.  The  decisions,  which  declare  that  if 
what  is  essential  to  the  existence  of  appellate  jurisdiction  is  not 
done  as  the  statute  defining  the  jurisdiction  prescribes  the  juris- 
diction does  not  exist,  give  support  to  our  conclusion.2  Nearer 
to  the  direct  question  are  the  decisions  which  affirm  that  it  is 
not  enough  to  give  notice  of  an  appeal  within  the  year,3  and  as 


1  Antf,  §  in.     See,  also.    Edmonson 

iloomshire,  7  Wall.  306.  In  this  case 

the  party  petitioned  for  leave  to  file  a 

bond  after  the  time  required  by  law, but 

ourl  refused  to  permit  it  to  be  done. 
It  \\a^  said,  in  speaking  ofa  former  case, 
•■  ( )ther  cases  followed  that  and  in  Mus- 
I  ivazos,  decided  at  the  last  term, 
the  whole  doctrine  is  reviewed  and  the 
rule  placed  distinctly  on  the  ground  that 
this  court  has  no  jurisdiction  unless  the 
transcript  be  filed  during  the  term  next 
succeeding  the  allowance  of  the  appeal. 

intelligible  ground  of  this  decision 
is,  that  the  writ  of  error  and  the  appeal 
an-  the  foundations  of  our  jurisdiction, 
without  which  we  have  no  right  to  re- 
vise the  action  of  the  interior  court." 
It   was    also    said:     "  In  tl  >l    the 

United   States  v.  Curry,  Chief  Justice 


Taney  answering  the  objection  that  the 
rule  was  extremely  technical,  replied, 
that  nothing  could  be  treated  by  this 
court  as  merely  technical,  and  for  that 
reason  be  disregarded,  which  was  pre- 
scribed by  Congress  as  the  mode  for 
excising  the  court's  appellate  jurisdic- 
tion." 

2  Brooks  v.  Norris,  11  How.  (U.  S.) 
204;  Credit  Co.  v,  Arkansas  Co.,  12S 
U.  S.  25;  Farrar  v.  Churchill.  135  U.S. 
609;  The  Lucy,  8  Wall.  307;  Steamer 
Virginia  v.  West,  ig  Mow.  [82;  United 
States  v.  (ionic/.    I    Wall.  690;    Mesa  V. 

United  States,  -'  Black,  721;  Castro  v. 
United  States.  3  Wall. 46;  Scarborough 
v.  Pargoud,  10S  U.  S.  567;  Washington 
County  v.  Durant,  7  Wall.  694. 

3  Johnson  v.  Stephenson,  104  Ind.  368. 
The  case  of  Evans  v.  Galloway,  20  Ind. 


WHEN   APPEAL  MAY    BE  TAKEN.  K)5 

far  as  they  go  they  are  in  close  agreement  with  the  cases  cited 
in  the  note  to  the  opening  sentence  of  this  paragraph.  The 
decisions  upon  the  subject  of  the  filing  the  assignment  of  errors 
are  closely  analogous  to  those  cited,  inasmuch  as  they  adjudge 
that  however  much  may  be  done  within  the  year  there  is  no 
appeal  if  the  assignment  of  errors  is  not  filed  within  that  period.1 
The  reasons  we  have  stated  are  strongly  fortified  by  the  con- 
sideration of  the  practical  benefit  which  would  result  from  the 
rule  we  state,  and  the  evil  consequences  which  would  flow  from 
a  contrary  doctrine.  As  it  is  always  proper  to  consider  the 
consequences  of  a  rule  of  practice,  as  it  is,  indeed,  of  a  statute,2 
it  may  not  be  inappropriate  to  allude  to  the  consequences  which 
would  flow  from  a  doctrine  that  would  permit  parties  to  take 
some  of  the  steps  essential  to  an  appeal,  after  the  expiration  of 
the  prescribed  time.  It  is  quite  certain  some  steps  must  be 
taken  within  the  time,  and  if  the  rule  be  that  if  some  only  of 
the  requisite  steps  need  be  taken,  how  is  it  possible  to  lay  down 
any  general  rule  for  determining  what  shall  be  their  character 
or  their  number?  If  the  rule  mentioned  should  prevail,  the 
courts  would  be  for  much  of  their  time  occupied  in  determining 
whether  the  steps  taken  in  the  particular  instances  were  suffi- 
cient in  number  and  weighty  enough  in  importance  to  save  the 
appeal.  If  parties  may  do  part  of  the  acts  required  after  the 
year  has  expired  it  will  be  in  their  power  to  cause  delays  and 
thus  defeat  one  of  the  chief  objects  of  the  law.  From  whatever 
side  the  question  is  viewed  it  is  clear  that  the  safe  and  sound 
conclusion  is  that  every  step  required  to  make  an  appeal  effect- 
ive must  be  taken  within  the  time  limited  by  law,  and  that 
every  step  prescribed  by  law  is  essential  to  the  appeal. 

479,  received  very  little  consideration,  lano,  34  Ind.  52;    Thoma    v.  State,   S6 

and  is  full  of  legal  heresy.     It  is,  how-  Ind.  182;    Thomas   v.   Service,  90   Ind. 

ever,  so  effectually  overruled  by  subse-  128;    Snyder    v.    State.    124    Ind.  33;. 

quent  cases  as  to  require  no  examina-  See  "The  Assignment  of  Errors,"  Chap- 

tion.     Harshman  v.  Armstrong,  43  Ind.  ter  XVI 

126,   129;    Wright  v.  Manns,   m  Ind.  *  Charles   River    Bridge    v.    Warren 

4---  424-  Bridge,    11    Peters.   420;   United  States 

1  Laurence   v.   Wood,   122   Ind.  452;  v.    Kirby,    7     Wall.    4S2;    Lawson    v. 

Bacon  t-.Witherow,  no  Ind.  94;   Breed-  Pulaski   Co.,   3    Ark.    1,    16,    Palairet's 

ing  v.  Shinn,  n  Ind.  547;   State  v.  De-  Appeal,  67  Pa.  St.  479. 


]0i;  APPELLATE   PROCEDURE. 

§  129.  Bar,  by  Limitation,  of  part  of  the  Appellants — Where  pan 
of  the  appellants  are  barred  because  of  a  failure  to  appeal  in 
time,  those  not  barred  may  prosecute  the  appeal,  and  the  names 
of  those  who  are  barred  may  be  struck  from  the  record.1  The 
provision  of  the  statute  essentially  changes  the  common  law 
rule,2  and  it  is  difficult  to  perceive  how  it  can  have  a  very  ex- 
tended practical  effect.  It  can,  indeed,  have  little,  if  any,  ef- 
fect, except  where  the  persons  not  barred  are  under  disability, 
for  where  there  is  an  essentially  independent  and  distinct  sev- 
eral right,  the  possessor  of  it  may  prosecute  a  separate  appeal, 
but  where  the  interest  is  joint  and  not  several  or  severable,  it  is 
difficult  to  understand  how  one  of  the  joint  parties  can  prosecute 
an  appeal,  except  under  the  statute  providing  for  prosecuting 
an  appeal  upon  notice  to  co-parties.  It  would  certainly  violate 
settled  principles  to  permit  him  to  do  so,  since  a  recovery  by 
him  would  necessarily  enure  to  the  benefit  of  those  joined  in 
interest  with  him,  or  else  to  his  sole  benefit.  In  cither  ca'se 
wrong  would  result.  If  he  secures  all  where  he  was  only  en- 
titled to  part,  it  would  be  wrong,  because  he  would  get  what 
another  is  entitled  to  receive  ;  if  his  appeal  secures  his  joint 
party  benefit,  it  would  also  be  wrong,  because  this  would  secure 
to  a  party  who  has  not  obeyed  the  law  all  he  could  have  ob- 
tained by  obeying  it.  It  is  probable  that  the  framers  of  the 
statute  intended  to  confine  its  operation  to  persons  under  dis- 
ability,3  but  the  language  employed  is  comprehensive  enough  to 
include  all  persons  and  classes.  There  is,  at  least,  plausible 
reason  for  the  construction  suggested,  inasmuch  as  the  associ- 
ated words  and  provisions  refer  to  persons  under  disability.  It 
may  well  be  held,  as  we  believe,  that  it  was  the  legislative  in- 

1  R.  S.,  §  634;    McEndree    v.  McEn-  thai   tin-  errors   assigned  arc  not  con- 
dree,  [2  [nd.  97;   Hawkins  v.  Hawkins,  clusively  confessed. 
28  Ii>>!  3  R.  S.,  §  033.     The  intention  to  save 

"Jacobs    v.   Graham,   1    Blackf.   392.  only    those    under   disability  is   mani- 

In  discussing  the  pleadings  of  the  ap-  fested  in  the  provisions  of  section  635, 

pellee,we  have  shown  thai  thequestion  whichdeclare  thai  co-parties  receiving 

whether    the    appeal    is    barred   by  the  notice    and    not    joining  in  the  appeal 

statute  of  limitations  may  be  presented  shall  take   no  benefit   from   the   appeal 

1  dismiss  the  appeal.     As  unless  under  " legal  disabilities." 
a  motion  is  appropriate   it    must    follow 


WHEN   APPEAL  MAY    BE  TAKEN.  K,7 

tention  that  the  section  of  the  statute  containing  the  provision 
under  immediate  discussion  should  only  apply  to  the  persons 
saved  from  the  bar  by  the  last  clause  of  the  preceding  section  ; 
that  is,  persons  under  legal  disability.  Another  reason  for  the 
construction  mentioned  is  that  the  provisions  of  the  statute  as  to 
the  rights  of  co-parties  refusing  to  join  in  appeal  after  notice 
seem  to  contemplate  that  the  joint  judgment  appealed  from 
must  be  one  in  which  persons  under  disability  are  not  interested. 
If  the  statute  providing  for  proceeding  with  the  appeal  bv  those 
not  barred  be  given  a  construction  different  from  that  suggested, 
it  would  seem  to  bring  it  into  conflict  with  the  section  respect- 
ing co-parties.1  Still  another  reason  is,  that  the  statute  is  to  be 
construed  in  connection  with  the  common  law,  and  in  connec- 
tion with  other  statutory  provisions,  since  all  form  parts  of  one 
great  system,  and  these  rules  and  provisions  indicate  that  onlv 
persons  under  disability  can,  as  a  general  rule,  escape  the 
statute  of  limitations. 

§  130  Parties  under  Disabilities — The  rule  limiting  the  time 
within  which  an  appeal  must  be  taken  to  one  year  does  not  op- 
erate upon  persons  under  legal  disabilities.2  A  partv  under 
a  legal  disability  at  the  time  the  judgment  is  rendered  "  may 
appeal  at  any  time  within  one  year  after  his  disability  is  re- 
moved." As  to  who  are  under  legal  disabilities  it  is  foreign 
to  the   scope    of  this  work  to  treat  at  length,  but  it  may  not 

1  The  last  sentence  of  the   statute  re-  them,  hut   if  persons  are   under  a  dis- 

specting  co-parties  (§  635)  reads  thus:  ability,  the  appeal  may  benefit  them,  so 

"  If  they   decline  to  join,  their    names  that  it  seems  that  the  right   to  proceed 

may  be  struck  out,  on  motion,  and  they  with  the  appeal   exists  onlv  in    favor  of 

shall  not  take  an  appeal  afterwards,  nor  those  whose  disabilities  prevent  a  bar, 

shall  they  derive  any  benefit  from  the  and  that  the  prosecution  of  an  appeal 

appeal  unless  from  the  necessity  of  the  by  one  of  several  co-parties  can  not  be 

case,  except   persons  under    legal  dis-  proceeded  with  under  the  section  mak- 

abilities."     This    provision  can   hardly  ing  provision  for  proceeding  where  part 

mean    to  allow   parties   not    under   dis-  are    barred,    except    where    the    bar    is 

ability  to  secure  a  benefit   unless  they  avoided    because    of  the  disabilities   of 

appeal  in  time,  for  if  they  do  not  appeal,  those  who  do  proceed. 

the    judgment    below    stands     against  *  R.  S.,  §  633. 


L08 


A.PPELLATE   PROCEDURE. 


be  inappropriate  to  say  that  it  is  probable  that  under  the  en- 
abling statutes,  a  married  woman  can  not  be  considered  as  a 
prison  under  a  legal  disability,  within  the  meaning  of  the  stat- 
ute regulating  appeals  '  Under  the  rule  laid  down  in  analo- 
gous cases,  the  limitation  begins  to  run  during  the  existence  of 
the  disability,  and  it  is  only  the  one  year  after  the  removal  of 
the  disability  that  is  allowed  for  taking  appeals  in  cases  where 
the  period  of  limitations  has  fully  expired  during  the  existence 
of  the  disability/  The  well  known  rule  that  cumulative  disa- 
bilities are  not  allowed  to  prevent  the  running  of  the  statute  of 
limitations  applies  to  a  statute  limiting  the  time  within  which 
appeals  shall  be  taken  as  fully  as  to  actions  in  a  court  of  orig- 
inal jurisdiction.  Cases  deciding  that  limitations  as  to  time  for 
appealing  from  justices  of  the  peace,  boards  of  commissioners, 
and  the  like,  are  imperative,  as  well  as  cases  deciding  that  the 
time  of  filing  motions  for  a  new  trial,  or  bills  of  exceptions,  is 
the  fixing  of  a  positive  limitation,  all  enforce  the  general  prin- 
ciple that,  except  as  to  persons  under  disability,  the  time  within 


1  The  decisions  declare  that  under 
these  statutes  "  ability  is  the  rule  and 
disability  the  exception."  Rosa  V. 
Prather,  103  Ind.  191:  Arnold  v.  Eng- 
leman,  103  Ind.  512,  514;  Barnett  v. 
Harshbarger,  105  [nd.  410;  McLead  v. 
1  Ins.  i ',,..  [07  1  rid.  394.  In  City 
Of   Indianapolis  :■.    Patterson.    I  I J     [nd. 

344.  the  court,  speaking  of  the  statute 
of  limitations  contained  in  section  292 
of  the  revised  statutes,  said:  '•And  so 
far  as  concerns  that  statute  of  limita- 
tions, married  women  have  been  under 
no  common  law  disabilities  which  e\- 
them  from  its  operation  since  the 
code  of  i88i  went  into  force."  In 
Bennett  v.  Mattingly,  no  Ind.  197,  it 
was  said:  "Coverture  is  no  longer  a 
legal  disability  in  this  state  except  in 
some  special  cases."       Strong  V.    Ma- 


keever,  102  Ind.  578;  Lane  v.  Schlem- 
mer,  114  Ind.  296,  301;  Phelps  v.  Smith, 
1  id  Ind.  387,  402;  Young  v.  McFadden, 
125  Ind.  254.  2*,<>;  Miller  v.  Shields,  124 
Ind.  166;  Haynes  v.  Xowlin  (Dec, 
'91). 

2  Wright  v.  Kleyla,  104  Ind.  22?,.  225; 
Strong  v.  Makeever,  102  Ind.  578; 
Breeding  1  Shinn,  8  End.  125;  Van 
Cleave  v.  Milliken,  13  Ind.  105;  Frantz 
V.  Harrow,  13  Ind.  507;  Vail  :\  Ilalton, 
14  Ind.  344;  Gray  v.  Stiver,  24  Ind.  174; 
White  v.  Clawson,  79 Ind.  [88;  Wright 
v.  Wright,  97  Ind.  444;  Peele  v.  State, 
118  Ind.  512.  514;  Sims  v.  Geay,  109 
[nd.  501;  Davidson:.  Bates,  in  Ind. 
391;  Walker  v.Hill,  1  1  1  Ind.  223:  City 
of  Indianapolis  v.  Patterson.  112  Ind. 
344;    Hern":-.  Griggs,  121  Ind.  471,  476. 


WHEN    A.PPEAL   MAY   BE  TAKEN. 


109 


which  an  appeal  must  be  taken  is  a  limitation  upon  the  right  of 
appeal  that  can  not  be  disregarded.1 


'Gray  v.  Palmer,  28  Cal.  416;  Peck 
v.  Courtis,  31  Cal.  207;  Genella  v.  Rel- 
jea,32  Cal.  159;  Wetherbee  v.  Dunn, 32 
Cal.  106;  Brandow  v.  Whitney,  54  Cal. 
5S7;  Douglass  v.  Fulda,  54  Cal.  588; 
Parks  v.  Barney,  55  Cal.  239;  Lower  r1. 
Knox,  10  Cal.  4S0;  Coombs  v.  Hib- 
berd,45Cal.  174;  Regan  v.  McMahan, 
43  Cal.  626;  Dooling  v.  Moore,  19  Cal. 
Si ;  Young  v.  Hudson,  99  Mo.  102,  12  S. 
W.  Rep.  632;  Patterson  v.  Woodland, 
2S  Neb.  250,  44  N.  W.  Rep.  112;  Miller  v. 
Camp,  28  Neb.  412,  ^4  N.  W.  Rep.  486; 
Ibley  v.  Thompson,   32   So.   Car.   5S2; 


Calo  v.  Railroad  Co.,  30  So.  Car.  608, 10 
S.  E.  Rep.  3S9.  Time  is  jurisdictional. 
Douglass  v.  Neguelona,  88  Tenn.  769, 
14  S.  W.  Rep.  2S3;  International,  etc., 
Co.  v.  State,  75  Texas,  356.  12  S.  W. 
Rep. 685;  Coggswell  :•.  Hogan,  1  Wash. 
4.  23  Pac.  Rep.  835.  See,  generally, 
Bellegarde  v.  San  Francisco,  etc.,  Co., 
So  Cal.  61,22  Pac.  Rep.  57;  Baars  v. 
Crearv,  23  Fla.61,  1  So. Rep.  335:  Till- 
man v.  Averett,  82  Cal.  576,  23  Pac. 
Rep.  S75;  Romine  v.  Craelle,  80  Cal. 
626,  22  Pac.  Rep.  296. 


CHAPTER  VII. 


PARTIES. 


<j  131.    Right  of  appeal  generally. 

132.  Only  parties  or  privies  can  ap- 

peal— General  rule. 

133.  Appealable  interest. 

134.  Cases  in  which  there  is  no  ap- 

pealable interest. 

135.  Substantial   interest  requisite. 
[36.    Exceptional  eases. 

137.  Succession — Substitution. 

138.  Joint  parties. 

139.  Co-parties  generally. 
1  |<>.     Necessary  parties. 

141.  Parties  to  the  record  not  always 

parties  to  the  judgment. 

142.  Persons  not  affected  by  the  ap- 

peal not  necessary  parties. 

143.  Rule  requiring  necessary  parties 

not  technical. 

144.  Notice    to    co-parties  jurisdic- 

tional. 

145.  Failure    to   give    notice    to    co- 

parties —  Waiver  of  objection. 

146.  Waiver  of  notice. 

147.  Successful  party  can    not  prose- 

cute an  appeal. 

14S.    Actual  controversy  must  exist. 

149.    Suit   for  review  cuts  off  appeal. 

1  --,,.  Waiver  and  estoppel  by  accept- 
ing benefit  of  judgment  ap- 
pealed from. 

151.    Exceptions  to  the  general  rule. 

1 5 j.  Payment  by  defendant  not  a 
waiver  nor  an  estoppel. 


§   153.    Against  whom   an  appeal  may 
be  prosecuted. 

154.  Appellees — Who    should   be  — 

General  rules. 

155.  Persons    united     in    interest  — 

Rights  of. 

156.  How  persons  originally  co-par- 

ties may  become  adversaries. 

157.  Termination  or  change  of  inter- 

est— Effect  of. 
15S.    Influence   of  the   chancery  ele- 
ment of  code  procedure. 

159.  Relation  of  parties  in  trial  court 

generally  continues  on  appeal. 

160.  Appealable    interest — How 

shown. 

161.  Effect  of  change  of  the  positions 

of  parties. 

162.  Within  what  time  parties  must 

be  brought  in. 

163.  Effect    of  the    appeal    upon    co- 

parties  who  decline  to  join. 

164.  Effect  of  notice  to  one  who  is  a 

party  but  not  a  co-party. 

165.  Death  of  party  before  appeal — 

Effect  of. 

166.  Death  of  partv  after  the  appeal. 

167.  Death  of  one  of  several  appel- 

lants— Effect  of. 

168.  Appeals   by   and   against   repre- 

sentatives and  privies. 

169.  Abatement  by  death. 


§131.  Right  of  Appeal  generally — The  question  as  to  who  may 
appeal  is  sometimes  answered  in  a  general  way  by  saying  that 
parties  and   privies   who  would  be  benefited  by  a  reversal  or 

(110) 


PARTIES.  HI 

modification  of  the  judgment  may  appeal,1  but  this  answer, 
while  it  is  correct  in  the  main,  is  not  strictly  accurate.  It  may 
be  that  there  is  a  -prima  facie  right  to  appeal  although  the  appeal 
can  not  be  made  successful.  Where  there  is  a  -prima  facie  right 
of  appeal  the  question  is  presented  as  to  whether  there  is  avail- 
able error  in  the  record  and  such  a  question  can  only  be  decided 
by  an  examination  of  the  record,  but  where  it  appears  that  there 
is  no  right  of  appeal  at  all,  the  appellate  court  will  dispose  of  the 
appeal  on  motion  without  examining  the  record  further  than  it 
is  necessary  to  do  so  in  order  to  enable  it  to  determine  whether 
a  right  of  appeal  exists.  If  the  case  is  one  of  which  jurisdiction 
can  not  be  entertained,  then  the  court  will,  of  its  own  motion, 
dismiss  the  appeal.2  The  distinction  between  cases  where  there 
is  a  right  of  appeal,  but  no  available  error,  and  cases  where 
there  is  no  right  of  appeal,  or  no  well  taken  appeal,  is  some- 
times important  as  affecting  the  mode  of  procedure,  as  it  is  ob- 
vious that  the  one  class  of  cases  may  often  be  more  summarily 
disposed  of  than  the  other,  and  that  the  different  classes  always 
require  different  treatment. 

§  132.   Only  Parties  or  Privies  can  Appeal — General  rule— The 

right  to  prosecute  an  appeal  is  in  terms  given  by  our  statute  to 
parties  to  the  judgment  or  order,3  and  it  is  in  general  true  that  it 
is  only  the  parties  or  their  privies  that  can  prosecute  an  appeal, 
but  it  may  be  said  in  passing  that  parties  can  not  always  ap- 
peal. The  rule  is  that  the  person  who  assumes  to  prosecute  an 
appeal  must  make  it  appear  that  he  is  a  party  or  privy4  and  that 

1  Dupree  v.  Perry,  iS  Ala.  34;  Hill  *  Davis  County  v.  Horn.  4  Greene 
v.  Hill,  6  Ala.  166;  Roberts  -'.Taylor,  (Iowa).  94;  Montgomery  v.  Leaven- 
4  Porter  (Ala.),  421;  Trammel  V.  Sim-  worth,  2  Cal.  57;  Sinter  :  .  De  Bernal, 
mons,  S  Ala.  271.  3S  Cal.  637,  640;  Jaqueth  v.  Jackson,  17 

2  Segler  v.  Coward.  24  So.  Car.  119,  Wend.  434;  Bayard  v.  Lombard,  9  How. 
122;  Stark  v.  Jenkins,  1  Wash.Ty.42i;  (U.  S.)  530;  Payne  V.  Miles.  20  How. 
Crane  v.  Farmer,  14  Col.  294,  it,  Pac.  (U.S.)  219;  Robinson  v.  Board,  37  Ind. 
Rep.  455.  332;   Hall  :\  Brooks,  89  N.  Y.  33;  In  re 

3  t  R.S.,  IjUp,:.   We  say  that  the  right  Hardy,  35   Minn.   193.     In    Fleming  v. 
of  appeal  is  given  from  orders  because  Mershon,  36  Iowa,  413,  it  was  held  that 
of  the  provisions  of  §  655,  relating  to  a  person  for  whose  benefit  an  action  is 
interlocutory   orders,    which    we    have  prosecuted  can  not  appeal, 
heretofore  discussed. 


11 -J 


APPELL  \  IT.    PROCEDl  RE. 


he  has  an  appealable  interest.1  If  there  is  no  appealable  inter- 
est the  poison  who  assumes  to  appeal  will  fail.2  It",  however, 
it  appears  that  there  is  a  substantial  interest  in  the  controversy, 
and  its  character  or  extent  is  such  as  to  bring  the  case  within 
the  jurisdiction  of  the  appellate  tribunal  an  appeal  will  lie.3 

§  133.  Appealable  Interest — The  appealable  interest  should,  as 
a  rule,  appear  from  the  record.  This  interest  as  usually  ex- 
hibited by  the  record  exists  only  in  those  who  were  parties  in 
the  trial  court ;  it  has,  indeed,  been  said  that  only  those  who 
were  parties  below  can  appeal.  Thus  it  has  been  held,  pursu- 
ant to  this  general  rule,  that  after  judgment  a  party  can  not 
come  in  so  as  to  secure  a  right  of  appeal.4  What  we  have 
stated  may  be  regarded  as  the  general  rules,  but  they  are,  as 
we  suppose,  subject  to  exceptions.  If  it  should  be  appropri- 
ately made  to  appear  that  by  legal  succession  persons  had  ac- 
quired an  interest  in  the  subject  of  the  controversy,  the  court 
would  certainly  allow  them  to  prosecute  the  appeal.5  This  is 
the  doctrine  applied  to  cases  where  a  litigant  dies  and  an  ad- 
ministrator is  appointed/'  and  there  is  no  reason  why  the  prin- 


1  Central  Trust  Co.  v.  Grant  Loco- 
motive Works.  [35  U.  S.  207;  Stuart 
-  Gay,  127  U.  S.  518;  Swann  v.  Wright 
Eq.,  1 10  U.  S.  590,  601. 

8  Pierse  v.  West,  29  [nd.  266;  Terrill 
v.  Jennings,  1  Metcf.  (Ky.)  450;  Mc- 
(.  jfor  v.  Pearson,  51  Wis.  [22;  Hem- 
menway  v.  Corey,  16  Vt.  225;  People  v. 
Wilson,  26  Cal.  127;  Mann  v.  Thayer, 
18  Wis.  170;  Griggs  v.  Detroit,  etc.,  Co., 
in  Mich.  117:  [dley  v .  Bowen,  11  Wend. 
227.   Arrowsmith  v.  Rappelge,  19  La. 

Ann.    527. 

3  Kiefer  y.Winkens,  39  How.  Pr.  Rep. 
170;  Sandford  v.  Sandford,  58  N.  V. 
07.  I : u  1  k  :.  Ayers,  [9  Hun.  17.  See, 
generally,  Dexter  v.  Codman,  148 
Mass.  i-m;  In  r,  Buckingham,  57 
Conn.  544,  iS  Atl.  Rep.  256;  State  v. 
Fowler,  \\  La.  Ann.  3S0,  6  So.  Rep. 
United  States  v.  Armijo,  5  Wall. 
HI- 


4  Johnson  v.  Williams,  2S  Ark.  47S; 
Austin  v.  Crawford  Co.,  30  Ark.  57S; 
Borgalthous  v.  Farmers  Ins.,  etc.,  Co., 
36  Iowa.  250;  Ferguson  v.  Board,  44 
Iowa.  701;    State  v.  Jones,  n  Iowa,  11. 

5  Phillips  v.  Shelton,  6  Iowa.  545. 

6  Arnold  v.  Waldo,  36  Vt.  204; 
Milliard  v.  MeDaniels.  (S  Vt.  122;  Dick 
v.  Kendall,  6  Ore.  166;  Mortimer  v. 
Nash,  17  Abbott  Pr.  R.  22g«;  Vail  v. 
Lindsay,  67  Ind.  528;  Benoil  v. 
Schneider,  39  Ind.  591.  In  the  case  of 
Peterman  v.  Ott,  45  Ind.  224,  it  was 
held  that  where  a  claim  is  assigned  al- 
ter judgment  before  a  justice  of  the 
peace,  the  assignee  may  be  substituted 
on  appeal  to  the  circuit  court;  and  we 
can  see  no  reason  why  the  same  doc- 
trine mav  not  apply  to  appeals  to  a 
higher  appellate  tribunal.  See  Benoit 
v.  Schneider,  39  Ind.  591;  Losey  v. 
Bi  ml,  Si  Ind.  510. 


PARTIES.  113 

ciple  on  which  the  doctrine  is  founded  should  not  be  extended 
to  cases  of  a  similar  nature.  It  is.  of  course,  essential  that  the 
person  who  seeks  to  prosecute  an  appeal  should  show  that  he 
is  interested  in  the  subject-matter  of  the  controversy  and  that 
his  rights  will  be  materially  affected  by  the  judgment,  for  he 
can  not  be  allowed  to  come  in  if  the  judgment  will  not  affect 
his  rights.  This  would  ordinarily  shut  out  persons  who  were 
not  made  parties  to  the  action,  for  their  rights  could  not  ordi- 
narily be  impaired  by  a  judgment  rendered  in  an  action 
to  which  they  were  not  parties.  There  may,  however,  be 
cases  where  one  who  was  not  a  party  may  have  a  right  to  ap- 
peal, as  for  instance,  the  assignee  of  an  insolvent  debtor,  a  re- 
ceiver, or  the  purchaser  of  land  from  a  mortgagor  after  fore- 
closure. 

§  134.  Cases  in  which  there  is  no  Appealable  Interest — In  accord- 
ance with  the  general  doctrine  that  only  parties  to  the  record 
can  prosecute  an  appeal  it  is  held  that  a  party  erroneously  per- 
mitted to  come  in  by  the  trial  court  can  not  maintain  an  appeal.1 
Where  a  judgment  is  rendered  against  a  township,  an  appeal 
by  the  township  trustee  individually  will  be  unavailing.2  A 
person  of  unsound  mind  may  appeal  from  a  judgment  provid- 
ing for  the  appointment  of  a  guardian,3  but  a  stranger  can  not. 
There  may  be  a  right  of  appeal  where  a  person  is  directly  and 
materially  affected  by  a  judgment,  although  he  may  not  be 
named  as  a  party  therein,  as,  for  instance,  in  the  case  of  one 
who  files  a  bill  of  interpleader,4  but  the  interest  shown  must 
be  more  than  a  nominal  one. 

§  135.  Substantial  Interest  requisite — The  decisions  referred  to 
in  the  preceding  paragraph  show  that-the  appeal  must  be  prose- 
cuted by  one  having  a  substantial  interest  in  the  controversy 
which  will  be  affected  by  the  judgment  on  appeal,  and  the  prin- 
ciple they  declare  is  in  harmony  with  the  general  rule  of  code 
practice,  which  requires  that  actions  shall  be  prosecuted  by  the 

1  Jager  v.  Doherty,  6i  Ind.  52S.  This         2  Mcllwaine  v.  Adams,  46  Ind.  5S0. 
doctrine  can  not,  however,  be  extended         3  Cuneo  :  .  Bessoni,  63  Ind.  ^4. 
■without  a  violation  of  principle.  *  Brooks  v.  Doxcv,  72  Ind.  327. 

8 


1  i  [  APPELLATE   PROCEDURE. 

real  party  in  interest.  There  are  authorities  declaring  that  a 
possible  remote  contingent  interest  is  not  sufficient  to  authorize 
an  appeal,  as,  for  instance,  in  the  case  of  the  objection  bv  a 
railroad  company  to  the  appointment  of  an  administrator  to 
bring  an  action  against  it  for  causing  the  death  of  the  intestate, 
or  in  the  case  of  the  objection  to  the  appointment  of  an  admin- 
istrator interposed  by  a  debtor.1  As  a  further  illustration  of  the 
general  doctrine  that  the  party  who  prosecutes  an  appeal  must 
show  a  substantial  interest  in  the  controversy,  may  be  adduced 
the  cases  which  hold  that  a  trustee  of  an  insolvent's  estate  who 
has  been  allowed  his  commissions  can  not  appeal  from  an  order 
allowing  the  claim  of  a  creditor  if  the  interested  parties  all  ac- 
quiesce in  the  order.2 

§  13G.  Exceptional  Cases — There  may  be  cases  where  a  person 
may  appeal,  although  he  can  not  be  said,  in  strict  accuracy,  to 
be  a  party  to  the  judgment  or  decree.  A  person  may,  for  in- 
stance, apply  for  leave  to  intervene  and  file  a  cross-complaint, 
or  counter-claim,  and  in  this  method  acquire  a  right  to  appeal, 
although  his  application  to  be  made  a  party  may  be  denied."5 
In  such  cases,  the  person  who  seeks  to  intervene  must  have  an 
appealable  interest  or  his  attempt  to  appeal  will  be  unavail- 
ing. Where  a  plaintiff  makes  a  person  a  party  to  his  complaint, 
he  can  not  successfully  urge  in  the  appellate  court  that  the  per- 
son thus  brought  in  can  not  assail  the  complaint.4  If  the  plain- 
tiff makes  persons  parties  to  his  complaint,  he  is  not  in  a  situ- 
ation to  assert  that  they  were  not  proper  parties,  for  he  can  not 
be  allowed  to  occupy  inconsistent  positions/' 

1  In  re  Hardy,  35  Minn.  193,  2S  3  Coburn  v.  Smart,  53  Cal.  742,  745. 
N.  W.  Rep.  219;  llv.itt  v.  Dusenbury,  The  principle  i-  essentially  the  same  as 
i"1'  \.  Y.  663;  Rankin  v.  Central,  etc.,  that  asserted  in  Brooks  v.  Doxey.  72 
Co.,  73  Cal.  96,  [5  Pac.  Rep.  57.  Ind.  327.  in  which  it  was  held  that  one 

2  Stewart  v.  Codd,  58  Mil.  86;  Sal-  who  attempted  to  interplead  might  ap- 
mon v.  Pierson, 8  Md. 297,  299.  Itisevi-  peal.  Krippendorf  v.  Hyde,  no  U.  S. 
dent  that  this  doctrine  is  one  that  should  276;  Ex  parte  Jordan,  94  U.  S.  24S; 
he  applied  with  scrupulous  care;  for  a  Savannah  v.  Jesup,  106  U.  S.  563. 

ir.  trustee,   or   the   like,  of  an   in-  4  Renner  v.  Ross,  m  Ind.  269. 

.  represents  all  the  cred-  5  Jones  v.  Thompson,  12  Cal.  191,  19S; 

itors,  and  it  is  only  where  all  the  cred-  Renner  v.  Ross,  supra;    Ricketson   v. 

itors  acquiesce  in  an  allowance  that  it  Compton,  23  Cal.  636, 649. 
can  justly  he  said  that  a  creditor  has 
no   appealable  into 


PARTIES.  U5 

§  137.  Succession — Substitution — We  have  incidentally  spoken 
of  the  right  of  one  who  becomes  the  successor  in  interest  of  a 
party  to  prosecute  an  appeal,1  but  the  subject  merits  more  than 
an  incidental  notice.  The  familiar  case  of  the  substitution  of 
heirs  or  administrators  where  one  of  the  parties  dies,  requires 
little  discussion.  It  may  be  here  incidentally  noted  that  where 
a  part}'  dies  before  appeal  the  appeal  can  only  be  taken  by  his 
heirs  or  personal  representatives.2  Where  the  party  dies  after 
the  appeal  and  before  submission,  his  legal  representatives  may 
be  substituted.3  If  he  dies  after  the  case  is  submitted,  the  de- 
cision may  be  entered  as  of  the  date  on  which  the  cause  was 
submitted,  without  any  change  of  parties.4  Where  leave  is 
given  to  substitute,  the  order  must  be  complied  with,  or  the  ap- 
peal will  abate  in  cases  where  substitution  is  necessary.5  Pass- 
ing from  the  familiar  class  of  cases  just  mentioned  to  cases 
where  original  parties  are  supplanted  by  representatives  of  a 
special  character,  we  find  illustrations  of  the  doctrine  of  suc- 
cession in  the  successorship  of  an  assignee  in  bankruptcy,6  of  a 
receiver,7  and  of  the  assignee  of  an  insolvent's  estate.8  Of  a 
somewhat  different  type,  but  illustrating  the  general  doctrine 
of  succession,  are  such  cases  as  that  of  a  purchaser  at  a  sale 
made  on  a  decree  of  foreclosure,9  that  of  persons  interested  in 
the  confirmation  or  non-confirmation  of  a  judicial  sale  made  by 

1  Ante,  §  133.  5  Ruckman   v.  Demarest,   no    U.    S. 

2  Branham  v.  Johnson,  62  Ind.  259;  400;  Hook  v.  Linton,  10  Peters,  107; 
Taylor  v.  Elliott,  52  Ind.  ^SS,  and  Philips  v.  Preston,  n  How.  (U.  S.)  294; 
authorities  cited.  Judson  v.  Love,  35  Barribeau  v.  Brant,  17  How.  (U.  S.)  43. 
Cal.  463;  Schartzer  v.  Love,  40  Cal.  93;  6  Herndon  v.  Howard,  9  Wall.  664. 
Sheldon  v.  Dalton,  57  Cal.  19;  Sanchez  7  Hinckley  v.  Gilman,  etc.,  Co.,  94 
v.  Roach,  5  Cal.  24S:  Coffin  v.  Edging-  U.  S.  467;  Claflin  v.  Farmers'  Bank, 
ton  (Idaho).  2^   Pac.   Rep.   So;    In   re  54  Barb.  22S. 

Beckwith,  S7  N.  Y.  503.  8  Johnson  v.  Thatcher,  7  Grav,  242; 

3  R.  S.,§637;   Halin  v.  Behrman,  73  Johnson  v.  Thatcher,  12  Gray,  198. 
Ind.  120,  129.  9  Blossom   v.  Milwaukee,  etc.,   Co.,  1 

4  R.  S.,  §  663;  Jeffries  v.  Lamb,  73  Wall.  655;  Minnesota,  etc.,  Co.  v.  St. 
Ind.  202.  207;  Walpole  v.  Smith,  4  Paul  Co.,  2  Wall.  609,  634;  Williams 
Blackf.  151.  This  topic  is  hereafter  v.  Morgan,  in  U.  S.  6S4,  699;  P 
considered.  We  here  refer  to  it  in  plaine  v.  Lawrence,  10  Paige,  602; 
illustration  of  the  general  doctrine  we  Murphrey  V,  Wood,  2  Jones  (N.  C), 
are  considering.  L.  63. 


116  APPELLATE   PROCEDURE. 

an  officer  of  court,1  or  that  of  persons  interested  in  defeating  the 
claim  of  a  receiver  or  assignee  to  compensation.2 

§  1.38.  Joint  Parties — It  is  essential  that  all  persons  whose  in- 
terests may  be  substantially  affected  by  the  judgment  on  appeal 
should  be  made  parties  to  the  appeal  in  some  appropriate  mode, 
but  it  is  not  always  true  that  all  who  were  parties  to  the  action 
or  to  the  record  in  the  trial  court  must  be  brought  before  the 
appellate  court.  Where  the  judgment  is  joint  there  is  no  dif- 
ficulty in  making  practical  application  of  the  general  principle 
stated,  for  all  who  are  parties  to  the  judgment  must  be  made 
parties  on  appeal.  Only  one  appeal  can  be  prosecuted  from  a 
joint  judgment  by  those  who  are  parties  to  it,  and  yet  all  must 
be  before  the  court  to  which  the  case  is  carried/5  But,  while 
all  the  parties  to  a  joint  judgment  must  be  brought  in  on  appeal 
they  need  not  be  brought  in  as  consenting  parties  but  they  may 
be  notified,  and  if  notified,  they  are  before  the  court  whether 
they  expressly  join  or  refuse  to  join  in  the  appeal.4  The  effect 
of  the  provision  in  our  statute  authorizing  one  of  the  parties  to 
appeal  prevents  one  of  several  from  controlling  the  action  of 
those  with  whom  he  is  united  in  interest,  and  yet  requires  that 
steps  shall  be  taken  which  will  bring  all  before  the  appellate 
tribunal  whose  rights  may  be  involved  in  the  controversy  upon 
which  a  decision  must  be  given.  As  this  is  the  chief  object  of 
the  statute  the  proceedings  under  it  must  be  such  as  to  give  it 

1  Sage  v.  Railroad  Co..  96  U.  S.  712;  Mason  v.  United  States,  136  U.  S.  581; 
Trustees  v.  Greenough,  105  U.  S.  527.      Curten  v.  Atkinson,  29  Neb.  612,  46  N. 

2  Hovej  v.  McDonald,  109  U.S.  150.     W.  Rep.  91 ;  Hunderlock  t>.The  Dundee, 

jenerally,  Hobarl  v.  Hobart,  86  N.  etc.,  Co.,  SS   Ind.    139;     State   v.    East 

Y.  636;    McKenzie  v.  Rhodes,  13  Abb.  et al.,  88  Ind. 602;  Concannon  v.  Noble, 

Pr.  R.337;   Louden  v.  Louden,  65  How.  96  Ind.  326;   Burns  v.  Singer,  etc.,  Co., 

Pr.  R.  -1 1 1 ;     Hotchkiss  v.  Piatt,  7  Hun.  S7  Ind.  541;    Douglaj  v.  Davis,  45  Ind. 

-(■.  affirmed,  66  N.  Y   620.  493;  Sloan  v.  Whiteman,  6  Ind.  494. 

3  Mastersonv.  Herndon,  10  Wall. 416;  4  R.  S.  1SS1,  §635;  Kain  v.  Gradon, 
Miller  v.  McKenzie,  10  Wall.  582;  6  Blackf.  138;  Kirby  v.  Holmes,  6  Ind. 
Simpson  v. Greeley,  20  Wall.  152;  Will-  133;  Conaway  v.  Ascherman,  94  Ind. 
iams  v.  Bank  of  the  U.  S.,  11  Wheat.  187;  Emmerl  v.  Darnall,  58  Ind.  141; 
\\  \:   Mussina  v.  Cavazos,  20  How.  (U.  Indianapolis,  etc.,  Co. v.  Caven,  58  Ind. 

180;  Hampton  v.  Rouse,  [3  Wall.  328;  Barger  v.  Manning,  43  Ind.  472; 
[87;  Feibelman  v.  Packard,  10S  U.S.  Moore  v.  McGuire,  26  Ala.  461;  De- 
it.     Fastis  v.   Trabue,    12S   U.  S.  225;     londe  v.  Carter,  28  Ala.  541. 


PARTIES.  117 

fair  and  reasonable  effect.1  The  object  intended  to  be  accom- 
plished by  the  legislature  and  the  common  law  practice  respect- 
ing the  general  subject  are  matters  proper  for  consideration  in 
construing  the  statute,  and  these  considerations  forbid  that  the 
statute  should  be  so  construed  as  to  require  that  all  who  were 
before  the  court  of  original  jurisdiction  as  parties  shall  be 
brought  in  as  parties  on  appeal  irrespective  of  the  question 
whether  the  judgment  that  may  be  rendered  on  appeal  can  or 
can  not  affect  their  rights. 

§  139.  Co-Parties — Generally — The  language  of  the  statute  pro- 
viding for  notice  in  cases  where  some  of  the  parties  decline  to 
appeal  does  not  imply  that  all  who  were  parties  to  the  record 
shall  be  notified.2  The  term  "co-parties"3  does  not  mean  that 
all  shall  be  notified  irrespective  of  the  effect  of  the  appeal  upon 
their  interests,  but  it  does  mean  that  where  their  interests  may  be 
materially  affected  by  the  judgment  on  appeal,  they  shall  be 
brought  before  the  appellate  tribunal  in  some  appropriate 
method.  The  practice  established  by  our  statute  is  borrowed 
from  chancery,  but  is  much  amplified.  The  rule  declared  by  the 
statute  requires  that  all  parties  having  a  common  interest  in  the 
subject,  who  may  be  affected  by  the  judgment  of  affirmance  or 
reversal,  shall  be  before  the  court  on  appeal,  since  no  person's 
rights  can  be  impaired,  much  less  destroyed,  unless  he  has  an 
opportunity  to  be  heard.  If  the  judgment  on  appeal  may  affect 
the  right  of  a  person  who  was  a  party  to  the  suit  or  action  in 
the  trial  court   he  ought    to    be   brought   before    the    appellate 

1  The  notice  toco-parties  required  by  v.  Finney,  63  Ind.  460;   Hadley  v.  Hill, 

the    statute  effects   what    is    called    "a  73  Ind.  442. 

Mimmons    and    a    severance,"   and    the         3  The  prefix  "co"  implies  a  conjunc- 

practice  has  long   been  recognized  by  tion,   not   a   diversity   of   interest,    and 

the  courts  so  that  the  statutory  provis-  signifies  "with,"    "together,"    or    "the 

ion  is  little  more  than  a  declaration  of  like."      Where  there  is  a  divisible  inter - 

a  long  established   rule.     Bradshaw  v.  est  and  the   judgment    completely    and 

Callaghan,    S    Johns.   558;     Fenner   v.  effectually  severs   that    interest,   it    can 

Bettner,    22    Wend.   621;    Smetters    v.  not  be  justly  said  that  persons,  although 

Rainey,     .4    Ohio     St.    2S7;     Todd    v.  parties  to  the  record,  are  "co-parties." 

Daniel.  16  Peters,  521;   Osborne  V.  Poe,  for  "co-parties"  they  can  not  be  where 

6  Humph.  (Tenn.)  hi;    Smith  v.  Cun-  the  interest   is   a   severable   one,  and  is 

ningham,  2  Tenn.  Ch.  565.  severed  by  the  judgment. 

2  R.  S.,  §  635;  People's  Savings  Bank 


I  18  APPELLATE   PROCEDURE. 

court  in  the  character  of  a  part}-,1  but  it  does  not  follow  from 
this  that  all  who  are  parties  below  are  necessary  parties  on  ap- 
peal, for  it  may  well  be  that  their  rights  may  not  be  affected  by 
any  judgment  that  can  be  rendered  by  the  appellate  tribunal. 

§  140.  Necessary  parties — While  it  is  safe  to  affirm  that  all 
persons  included  in  a  joint  judgment  must  be  parties  to  the  ap- 
peal, it  is  not  safe  to  say  that  only  such  persons  must  be  parties 
to  the  appeal,  for  there  may  be  cases  where  the  decree  or  judg- 
ment is  not  strictly  a  joint  one  in  which  all  the  parties  are  so 
affected  by  it  as  to  be  necessary  parties  to  the  case  on  appeal. 
Thus,  a  decree  in  partition  ma}-  affect  all  so  materially  as  to 
require  that  they  should  be  brought  before  the  appellate  tri- 
bunal.2 So,  where  a  fund  is  in  court  for  distribution  the  claim- 
ants of  the  fund  may,  in  some  instances,  be  affected  by  a  judg- 
ment awarding  part  of  it  to  some  one  of  their  number,  and  if 
so,  all  affected  should  be  parties,  for  their  rights  can  not  be 
justly  adjudicated  without  their  presence  as  parties.3  A  further 
illustration  is  supplied  by  the  case  wherein  it  was  held  that 
where  a  judgment  affected  one  of  several  legatees  all  must  be 
made  parties.'  The  authorities  referred  to  warrant  the  con- 
clusion that  those  whose  rights  are  involved  are  necessary  par- 
although  their  rights  may  be  several  in  their  nature. 
Whether  the  persons  who  were  parties  below  shall  be  made 
parties  on  appeal  depends,  it  is  safe  to  say,  upon  the  effect  that 
the  judgment  of  the  appellate  tribunal  may  have  upon  their 
rights  ;  if  it  will  affect  their  rights  materially  they  should  be 
made  parties  and  notified.  But  because  they  were  in  the  court 
below  as  parties  to  the  record  is  not  always  decisive  of  the 
question  whether  they  should  be  made  parties  on  appeal.5 

'Hendricks    v.    State,    7;    Ind.  4S;;  8  Pearson  v.  Darrington,  32  Ala.  227; 

Pierson  v.  Hart,  64  End.  254;   Barger  v.  Barker  v.  Barker,  39  X.  II.  408;  Anon, 

Manning,  13  [nd.  472;   Henry  v.  Hunt,  18  Abbott's  Pr.  R.  87.     But,  see,  Beer 

52  Ind.  114;   Reeder  v.  Maranda,  55 Ind.  v.  Creditors,  1 2  La.  Ann.  774. 

McKeen    v.   Boord,  60   Ind.   2S0;  *  Washburn  v   Kline,  47  Ind.  128. 

Herzogg    z<.    Chambers,   61    Ind.   333;  5  New  parties  who  ought  to  have  been 

Hamn                           69  Ind.  37.  broughl  into  the  case  while  pending  in 

'l  Hunt:'.  Hawley,  70  Iowa.  183.   Sec.  the   courl   of  original    jurisdiction  can 

rally,  Indianapolis,  etc.,  Co.  v.  Ca-  not.  as  we   have  elsewhere  shown,  be 

ven,  58  Ind.  328.  broughl  in  for  the   first  time  on  appeal. 


PARTIES.  U9 

§  141.   Parties  to  the  record  not  always  parties  to  the  Judgment 

— Where  the  judgment  is  distinct  and  complete  in  itself,  affect- 
ing only  the  party  who  seeks  its  overthrow,  there  is  no  reason 
for  compelling  him  to  augment  the  expense  of  litigation  by 
making  parties  to  his  appeal  persons  who  were  parties  to  the 
record  but  not  to  the  judgment.  Where  no  substantial  good 
can  be  accomplished  by  bringing  parties  before  the  appellate 
tribunal,  it  is  worse  than  a  waste  of  time  and  money  to  give 
them  notice,  for  it  is,  to  some  extent  at  least,  a  hindrance  and 
obstruction  of  justice.  Thus,  where  two  persons  are  sued  as 
wrong-doers  in  a  case  where  the  wrong  is  several,  and  judgment 
goes  against  one  of  them  and  in  favor  of  the  other,  there  is 
ordinarily  no  conceivable  reason  why  the  unsuccessful  defend- 
ant should  give  notice  to  the  fortunate  one,  since  it  is  very  clear 
that  the  latter  can  in  no  wise  be  affected  by  the  appeal.  If  the 
plaintiff  is  dissatisfied  and  desires  a  judgment  against  the  suc- 
cessful defendant,  the  case  may  be  different.  In  such  a  case  the 
plaintiff  must  take  proper  steps  in  the  trial  court  to  bring  in  ques- 
tion the  correctness  of  the  judgment  in  favor  of  the  successful 
defendant.  If  he  takes  no  such  steps  there  is  no  valid  reason  why 
the  successful  defendant  should  be  brought  in  on  an  appeal 
taken  by  the  other  defendant,  inasmuch  as  no  good  can  be  ac- 
complished by  bringing  him  in.  The  better  considered  cases 
sustain  us  in  asserting  that  where  the  right  of  action  is  clearly 
divisible  and  the  judgment  is  against  one  of  the  defendants  and 
in  favor  of  the  other,  the  unsuccessful  defendant  need  not  make 
the  other  a  party  to  the  appeal,  unless  such  action  is  taken  in 
the  trial  court  as  makes  both  of  the  defendants  necessary 
parties  to  the  appeal.1     Some  of  the  decisions  have  pushed  the 

Questions  as  to  who  are  and  who  are  201;  Hanrick  v.  Patrick,  119  U.  S.  156; 
not  necessary  parties  in  the  original  Marsh  v.  Nichols,  120  U.  S.  598;  Brews- 
suit  or  action  must  be  appropriately  ter  v.  Wakefield,  22  Mow.  (U.  S.)  11S; 
presented  to  the  nisi  frius  court,  and  Coxr.  United  States, 6 Peters,  172:  Ger- 
t lie  ruling  reserved  in  due  form,  for  the  main  v.  Mason,  12  Wall.  259;  Farrell 
appellate  tribunal  will  not  decide  an  v.  Patteson,  43  111.  52 ;  Emerick  v.  Arm- 
original  question  as  to  parties,  but  will  strong,  1  Ohio,  513;  Sharpe  v.  Jones,  3 
simply  review  the  decision  of  the  trial  Murphy  (N.  C),  306;  Howie  v.  State,  1 
court.  Golden,  etc.,  Co.  v.  Smith,  2  Ala.  113;  Turner  v.  State,  40  Ala.  21. 
Dak.  Ter.  374.  The  doctrine  of  the  text  is  forcibly  il- 
1  Forgay  V.  Conrad.  6  How.  (U.  S.)  lustrated  by  the  cases  which  hold  that 


APPELLATE    PROCEDURE. 

doctrine  of  notifying  parties  to  the  record  to  an  unreasonable 
and  indefensible  extent,  and  the}'  require  limitation,  but  the 
very  decided  weight  of  authority  is  that  where  a  party  can  not 
be  affected  by  a  judgment  that  may  be  rendered  on  appeal,  it 
is  nut  necessary  lo  bring  him  before  the  appellate  tribunal.1 

^  142.   Persons  not  affected  by  the  Appeal  not  necessary  parties — 

Where  a  judgment  may  be  rendered  on  appeal  without  affecting 
the  rights  of  others  than  those  who  are  parties  to  the  appeal, 
there  is,  it  is  evident,  jurisdiction  of  the  person,  and,  if  there 
is  also  jurisdiction  of  the  subject,  there  is  power  to  do  justice. 
A  party,  as  we  have  seen,  who  has  no  interest  can  not  appeal, 
and  if  he  can  not  appeal,  certainly  there  is  no  reason  for  mak- 
ing him  a  party  to  the  appeal,  since,  if  he  has  no  interest  he 
can  not  be  heard  either  for  or  against  the  appeal.-  It  is  a  car- 
dinal rule  of  appellate  procedure,  prevailing  in  criminal  cases,3 
as  well  as  in  civil,'  that  a  party  can  not  complain  of  errors  in 
his  own  favor.  It  must  logically  result  from  these  familiar  and 
well  established  principles  that  a  party  need  not  be  brought  in 
on  appeal  if  he  has  no  interest  that  can  be  prejudiced,  benefited, 
advanced,  or  put  in  jeopardy,  for,  without  such  an  interest, 
there  are  no  rights  to  be  adjudicated,  and  hence  nothing  entit- 
ling such  a  person  to  be  heard. 

iJ  143.   Rule  requiring  necessary  Parties  not  technical — The  rule 

one   of  several    parties    against  whom  ■  Allen  v.  Commonwealth,  86  Ky.  642, 

damages  are  separately  assessed  in  con-  12  S.   W.   Rep.  582;     Bishop    v.   State 

demnation  proceedings  are  allowed  to  (Ark.), 14 S.W. Rep. 88;  State f.Bruder, 

icute  separate  and  distinct  appeals.  35 Mo.  App.  17;;  Hawthorne  v.  State,  28 

Larsh  v.  Test,  48  Ind.  130;    Washburn  Texas  App.  212;    State  V.  Jacobs,  28  So. 

v.  M  ilwaukee,  etc.,  Co.,  59  Wis.  379.  Car.  29,  4  S.  E.  Rep.  799;  State  v.  Wil- 

1  Koons  v.  Mellett,  121  Ind.  585,  5S7;  son,  104  N.  C.  S6S,  10  S.  E.  Rep.  315. 

].  77  Ind.  558;    Easter  *  Fischers.  Holmes,  123  Ind.  525, 24  N. 

crin,  7S  Ind. 540;  Hamilton  :■.  Se\-  E.  Rep.   577;    Hell  V.  Anderson,  74   Wis. 

69  Ind.  37;  Hogan  v.  Robinson,  94  638,43    N.    W.    Rep.    666;     Michigan, 

Ind.  138;     Berghoff  v.    McDonald,   87  etc.,    Co.   v.    Doherty,  77    Mich.    359, 

Ind.  549;    McAllister  v.   State,  Si   Ind.  43    N.    W.     Rep.    988;     Wilson   v.   At- 

Wilson    v.  Stewart,  63  Ind.  294;  lanta,  etc.,  Co.,  82  Ga.  3S6,  9  S.  E.  Rep. 

Kennedy  V.  Divine,  77  Ind.  490.  i"7r>;    Schiller  v.   Adams,    13  Col.  572, 

1  Gage  v.  Du  Puy,  127  [11.  216,  z\   \.  22  Pac.  Rep.  964;    Golden   Gate,  etc.. 

E.  R                             Kelly,  133  U.S.  21;  Co.  v.  Hendy  Co.,  S2  Cal.  184,  23  Pac. 

Alii.,                        Ill.>,24.\.  !•:.  Rep.  551.  Rep.   15. 


PARTIES.  121 

requiring  parties  having  an  interest  that  may  be  materially 
allected  by  the  judgment  to  be  brought  before  the  appellate 
tribunal  is  in  no  sense  a  technical  one  ;  on  the  contrary,  it  is  a 
rule  of  great  importance  and  is  required  in  order  to  secure  a 
litigant  "  his  day  in  court."  It  is,  when  justly  understood,  a 
salutary  rule,  and  one  required  by  the  constitutional  principle 
that  the  rights  of  a  party  can  not  be  adjudicated  without  notice. 
The  right  of  a  party  to  notice  is,  indeed,  fundamental,  for  with- 
out notice  it  can  not  be  truly  said  that  there  is  due  process  of  law.1 
It  can  not  be  doubted  that  a  statutory  provision  requiring  notice 
is  an  imperative  one,  but  it  may  well  be  doubted  whether  an 
attempt  to  confer  a  right  of  appeal  in  cases  where  substantial 
rights  are  involved  would  be  valid,  except,  of  course,  in  cases 
where  the  appeal  is  taken  in  term  or  at  a  time  when  the  fact 
of  appealing  itself  conveys  notice. 

§  144.  Notice  to  co-parties  Jurisdictional — Confusion  has  been 
introduced  into  our  cases  by  statements,  loosely  and  generally 
made,  that  the  rule  requiring  notice  to  co-parties  is,  in  a  sense, 
a  technical  one.2  There  are,  however,  cases  which  speak  of  the 
requirement  as  jurisdictional.3  It  certainly  is  jurisdictional 
wherever  the  nature  of  the  case  is  such  as  to  render  it  necessary 
to  have  all  the  parties  before  the  court  in  order  to  fully  determine 
their  rights.  It  can  not,  we  think  it  quite  safe  to  say,  be  justly 
held  that  the  question  whether  parties  having  a  substantial  in- 
terest that  must  necessarily  be  involved  in  the  decision  given  on 
appeal  should  have  notice,  is  a  merely  formal  or  technical  one  ; 
it  is,  on  the  contrary,  a  material  question  inasmuch  as   it  is  es- 

1  State  v.  Robbins,  124  Ind.  30S,  24  N.  the  case  last  named  it  was  said,  in 
E.  Rep.  978,  S  Lawyers' Rep.  Ann.  43S;  speaking  of  notice  to  co-parties,  that: 
Kuntz  v.  Sumption,  117  Ind.  1;  Stuart  "Without  notice  to  such  parties  this 
v.  Palmer,  7^  N.  Y.  1S3;  Gabriel  v.  court  has  no  jurisdiction,  and  the  appeal 
Mullen,  30  Mo.  App.  464;  Ulman  v.  should  be  dismissed.*'  See,  also,  Knarr 
Baltimore,  etc.,  Co.,  72  Md.  587,20  Atl.  v.  Conway,  37  Ind.  257;  Wickham  v. 
Rep.  141;  Murdock  v.  Cincinnati,  39  Hess,  3S  Ind.  183;  Aylesworth  v.  Mil- 
Fed  Rep.  S91.  ford,  3S  Ind.  226;  Erwin  v.  Scotten,  38 

2  Field  v.  Burton,  71  Ind.  380.  Ind.  2S9.     The  requirement  that  notice 

3  Hunderlock  v.  Dundee,  etc.,  Co.,  shall  be  given  to  co-parties  is  statutory, 
SS  Ind.  139;  State  v.  East,  8S  Ind.  and  hence  can  not  be  disregarded.  R. 
602;  Shulties  v.  Keiser,  95  Ind.  159.  In  S.  1SS1,  §  635. 


122  APPELLATE  PROCEDURE. 

sentially  jurisdictional.  It  is  jurisdictional  because  it  involves  the 
right  of  the  appellate  tribunal  to  exercise  authority  over  the  per- 
son, and  jurisdiction  of  the  person  is  always  essential,1  on  appeal 
as  well  as  at  nisi-prius.  Some  of  the  courts  hold  that  the  question 
is  essentiallv  jurisdictional,-  while  others,  taking  a  sort  of  middle 
ground,  hold  that  a  decision  may  be  given  affecting  the  rights 
of  the  parties  before  the  court  but  not  the  rights  of  others.3  The 
objection  to  the  decisions  which  take  what  we  have  called  the 
middle  ground  is,  that  they  trench  upon  the  fundamental  rule 
forbidding  the  decision  of  cases  in  fragments,  and  recognize 
authority  to  make  partial  decisions  in  what  should  be  regarded 
as  an  entire  and  indivisible  cause.  Of  course,  where  there  is  a 
separate  and  distinct  judgment  affecting  only  the  parties  who 
appeal,  the  objection  suggested  is  without  force.  It  seems  to  us 
that  the  only  conclusion  that  can  be  supported  on  principle  is 
that  wherever  the  presence  of  parties  is  essential  in  order  to  a 
complete  adjudication,  the  question  is  jurisdictional  and  the 
appeal  can  not  be  entertained  unless  the  parties  interested  are 
notified  as  the  statute  requires. 

^  1 45.   Failure  to  give  notice  to  Co-parties — Waiver  of  objection — 

As  far  as  a  question  can  be  settled  by  decisions,  the  question  as 
to  a  waiver  by  a  failure  to  object  because  the  necessary  co- 
parties  were  not  notified,  is  settled  by  our  cases.  It  has  been 
held  in  very  many  cases  that  if  a  case  is  submitted  by  agree- 
ment the  appellee  waives  the  objection  that  co-parties  were  not 
notified.4     We  venture  to  suggest,  notwithstanding  the  formid- 

1  Robertson  v.  State,  109  Ind.  79.  19  U.   S.   Sup.  Ct.  Rep.  Co-op.  ed.  7": 

2  In   re    Castle    Dome,   etc.,    Mining     Barton   v.  Long,  15    X.  J.    Eq.    160,   16 
Co.,    79   Cal.    246,  21    Pac.    Rep.   746;     Atl.  Rep.  6S3. 

Senter   v.   DeBernal,  3S  Cal.  637.641;  8  Wrighl  v.  McHaffey,  76   Iowa.  96; 

Williams  v.  Santa  Clara  Mining  Asso-  Moore  -•.  Held.  73  Iowa,  53S,  35  N.  W. 

ciation,  66  Cal.  193;    O'Kane  v.  Daly,  Rep.  623. 

63  Cal.  317;  Randall  v.  Hunter, 69  Cal.  4  Talburt  v.  Berkshire  Life  Ins.  Co., 

80;     Miller  v.  Thomas.    71    Cal.    406;  So  Ind.  434:   Easter  v.  Severen,  78  Ind. 

Millikin    v.    Houghton,    75    Cal.    539:  540;   Burk   v.  Simonson,  104  Ind.  173; 

Moyle  v.  Landers,  78  Cal.  99;    Curten  Etter  v.  Anderson,  84  Ind.  333;    First 

v.  Atkinson,  29  Neb.  612,  46  N.  W.  Rep.  National   Dank   v.  Essex,  84   Ind.   144: 

1.   Guarantee,  etc.,  Co.  v.  Buddington,  Hendricks  v.  Frank,  86  Ind.  278;    Bol- 

23   l'la.  ^r.(:    Downing  v.  McCartney,  ing  v.  Howell,  93  Ind.  329;    Martin  v. 


PARTIES. 


123 


able  array  of  cases,  that  the  doctrine  that  an  agreement  to  sub- 
mit operates  as  a  waiver  is  not  sound,  and  we  offer  as  a  reason 
for  our  conclusion  that  one  party  can  not  by  consent,  actual  or 
implied,  confer  jurisdiction  over  some  other  person.  A  person 
may,  of  course,  confer  authority  over  himself  and  his  own 
rights,  but  he  can  not  confer  authority  over  another  person  or 
his  rights.  The  effect  of  the  decisions  referred  to  is  to  permit 
one  who  appeals  to  confer  jurisdiction  over  others  who  neither 
appeal  nor  are  given  notice,1  and  this  result  is  at  variance  with 
sound  authority,  as  well  as  with  the  principles  of  natural  justice. 

§  146.  Waiver  of  Notice — Parties  entitled  to  notice  as  co-parties 
may  waive  notice  either  expressly  or  impliedly.  Form  is  not  a 
matter  of  much  importance,  for  if  the  parties  entitled  to  be  heard 
are  before  the  court  so  that  they  can  protect  their  interests, 
there  is  no  reason  why  the  court  should  not  pronounce  judg- 
ment ;2  and  hence  waiver  will  often  be  inferred  from  conduct, 
and  so  especially  where  the  parties  have  an  opportunity  to  be 
heard,  although   not  regularly  served  with  notice.     This  does 


Orr,  96  Ind.  491;  Dobbins  v.  Baker,  80 
Ind.  52;  Easter  v.  Acklemire,  Si  Ind. 
1^3;  Munson  v.  Blake,  101  Ind.  7S; 
Brooks  v.  Doxey,  72  Ind.  327. 

1  It  may  be  added  that  the  confusion 
and  error  which  have  crept  into  our 
decisions  are  due,  in  some  measure  at 
least,  to  the  failure  to  clearly  keep  in 
mind  the  rule  for  determining  who 
are  and  who  are  not  necessary  par- 
ties to  an  appeal.  If  parties  are 
necessary,  the  question  takes  the  form 
of  a  jurisdictional  one,  and  only 
the  party  whose  rigbts  are  affected 
can  give  jurisdiction  of  bis  person. 
Surely  no  other  can  do  it.  If  the  omit- 
ted persons  were  not  necessary  parties 
to  the  appeal,  then  jurisdiction  exists, 
whether  they  are  present  or  absent. 
The  cmestion  must,  as  it  seems  to  us, 
always  be  solved  by  determining 
whether  the  omitted  persons  were  nec- 
essary parties.     Whether  there  was,  or 


was  not,  a  waiver  by  other  persons  is 
entirely  foreign  to  the  dispute.  It  cer- 
tainly would  be  unjust  to  compel  a  co- 
party  who  had  no  notice  of  an  appeal 
to  pay  the  costs,  and  it  would  be  still 
more  unjust  to  compel  him  to  yield 
rights  secured  to  him  by  the  judgment. 
and  yet  these  results  must  follow  if  the 
doctrine  of  the  cases  is  carried  to  its 
necessary  and  logical  conclusion. 

2  This  general  doctrine  is  illustrated 
and  enforced  by  many  cases.  State  v. 
Hattabough,  66  Ind.  223;  Truman  v. 
Scott,  72  Ind.  25S;  Burnett  v.  Abbott. 
51  Ind.  254;  Wangerien  v.  Aspell,  47 
Ohio  St.  250,  24  N.  E.  Rep.  405;  Moore 
v.  Lewis,  76  Mich.  300,  43  X.  W.  Rep. 
1 1 ;  Mickley  v.  Tomlinson.  79  Iowa.  383, 
41  N.  W.  Rep.  311;  McAllep  v.  The 
Latona,  3  Wash.  Tv.  332.  19  Pac.  Rep. 
131;  Ware  v.  Morris,  42  La.  Ann.  760, 
7  So.  Rep.  712;  Waddingham  v.  Wad- 
dingham,  27  Mo.  App.  596. 


124  APPELLATE    PROCEDURE. 

not  imply,  however,  that  other  parties  may  waive  their  rights. 
Mere  irregularities  in  the  notice  are  waived  by  a  submission 
without  objection.1  When  there  is  no  notice  in  a  case  where 
one  is  required,  the  submission  will  not  operate  as  a  waiver.2 

bmission  bv  agreement  waives  a  pending  motion  to  dismiss 

ippeal  ' 

§  147.  Successful  party  cau  not  prosecute  au  Appeal — The  gen- 
eral rule  is  that  a  party  who  fully  succeeds  has  no  right  to  an 
appeal.1  A  party  may,  however,  obtain  some  relief,  but  not 
all  to  which  he  is  entitled,  and  in  such  a  case  an  appeal  will 
lie.  If  a  partv  is  awarded  full  relief  there  can  be  no  reason 
for  an  appeal,  since  there  is  no  wrong  to  redress,  and  if  no 
wrong,  no  remedy  exists.  So,  too,  a  party  who  fully  succeeds 
can  not  be  injured  by  any  ruling  of  the  trial  court,  and  only 
prejudicial  errors  call  into  exercise  the  appellate  jurisdiction. 
Where  partial  relief  only  is  adjudged  there  may  be  prejudicial 
error,  but  where  full  relief  is  decreed  there  can  be  none,  and 
to  permit  an  appeal  bv  the  successful  party  in  such  a  case 
would  violate  fundamental  principles  and  lead  to  injustice  both 
to  the  community  and  to  parties. 

§  148.  Actual  Controversy  must  exist — Where  there  is  no  actual 
controversy  there  can  be  no  appeal.5     Courts  are  created  for 

1  State  v.  Walters,  64  Ind.  226:  Beck  3  Bender  v.  Wampler,  S4  Ind.  172. 

>tate,    72     Ind.    250;     Critchell    v.  4  Green  v.  Blackwell,  5  Stew.  (X.J.) 

Brown,  72  Ind.  339;   State  v.  Kutter,  59  768;     Com.  Ins.  Co.  v.  Pierro,  6  Minn. 

Ind.  572;   Walker  v.  Hill,  m   Ind.  223;  569;  St.  Louis,  etc.,  Co.  v.  Evens,  etc., 

v    v.    Potter,    29    Mo.   App.    222;  Co..     15     Mo.    App.    590;     Hooper    v. 

Benson  v.  Carrier,  28  So.  Car.  119,  5  S.  Beecher,  109  N.  Y.  609;    Fairbanks  :■. 

E.   Rep.  272;    Guarantee,  etc.,    Co.   v.  Corliss,  1  Abbott  (N.  Y.),  150, 155.     In 

Buddington,  23  Fla.  514.  2  So.  Rep.  885;  the  case  of  Hall  v.  Pay  Rock,  etc.,  Co., 

Bates    v.    Scott.    26     Mo.    App.    ^2S;  6  Col.  Si,  it  was  held  that  consent  will 

In   re  Joseph    Unrig    Brewing  Co..   11  not  confer  jurisdiction. 

Mo.  Anp.  387;    Mackey  v.  Common-  B  Lord  v.  Veazie,  8  How.  (U.  S.)  251; 

K  v.  345;  Chicago,  etc.,  Co.  v.  Little  v.  Bowers,  134  U.  S.  547;  Elwell 

Abilene,  etc..  Co.,  42   Kan.  104,  107,  21  v.  Fosdick,    134   U.   S.  500;  Nunan    v. 

Pac.  Rep.  1112;  Richardson  v.  Green,  Valentine, 83  Cal.  588,23  Pac. Rep. 713; 

130  U.S.  104;   Roy  v.  Rowe,9oInd.54;  Hintrager  v.  Mahoney,  78  Iowa,  537. 

Cain  v.  Goda,  94  Ind.  555;     First   Nat.  13  X.  W.  Rep.  522,5  Law  Ann.  Rep. 50; 

Bank  v.  Essex,  S4  Ind.  144.  State  i>.  Westmoreland.  29  So.  Car.  1, 

■  Burkam  v.  McEfresh,  88  Ind.  22^  6  S.   E.  Rep.  s47;  Chicago,  etc.,  Co.  v. 


PARTIES.  125 

the  purpose  of  deciding  real  controversies  and  not  for  the  pur- 
pose of  determining  abstract  or  speculative  questions.  It  must, 
therefore,  appear  that  there  is  an  actual  controversy  between 
the  parties.  Where  the  record  shows  that  an  action  was  regu- 
larly begun  and  that  it  was  contested  in  the  ordinary  manner, 
the  presumption  is  that  there  is  an  actual  controvers}',  but  this 
presumption  may  be  overthrown  by  extrinsic  evidence.1  The 
fundamental  principle  of  appellate  procedure  that  there  must 
be  an  actual  controversy  sustains  the  rule  stated  in  the  preced- 
ing paragraph  and  leads  to  other  important  conclusions. 
Among  the  conclusions  to  which  it  leads  is  this :  Where  the 
controversy  is  ended  by  the  acts  of  the  parties  themselves  or 
by  operation  of  law  there  is  no  right  of  appeal.2  Thus,  where 
a  nolle  prosequi  was  entered  to  an  indictment  by  order  of  the 
President  of  the  United  States  it  was  held  that  the  appeal  must 
be  dismissed.3  So,  where  it  appeared  that  the  controversy  had 
been  settled,  a  dismissal  was  ordered.4  The  same  principle 
underlies  the  case  which  holds  that  where  the  term  of  office  in 
dispute  has  expired  an  appeal  will  not  lie.5 

§  149.   Suit  for  review  cuts  off  Appeal — A  party  may  have  an 

Dey,  76   Iowa,  278,  41   N.  W.  Rep.  17;         *  Peck  v.  Young,  1  How.  (U.  S.)  250; 

Peoples.  Burns,  78  Cal.  645,  21    Pac.  Cartwright   v.   Howe,   1    How.  (U.S.) 

Rep.  540;    Treat  v.  Hiles,  77  Wis.  475,  iSS;  Monnett  v.  Hemphill,  no  Ind.299; 

44  N.  W.  Rep.  10SS.  State  v.  Kamp,  in  Ind.  56.      See.  geh- 

1  Witz  v.  Dale  (Ind.),  27  N.  E.  Rep.  erally,  Williams  v.  Nottawa,  104  U.  S. 
49S;  Elwell  v.  Fosdick,  134  U.  S.  500;  209;  Wood  Paper  Co.  v.  Heft,  S 
The  Board,  etc.,  v.  Louisville,  etc.,  Co.,  Wall.  333;  Cleveland  v.  Chamberlain, 
109  U.S.  221;  Dakota  County  v.  Glid-  1  Black,  419;  People  v.  Burns,  78  Cal. 
den,  113  U.  S.  222.  In  the  last  case  645,  21  Pac.  Rep.  540;  Numan  v.  Val- 
cited  it  was  said:  "But  this  court  is  entine,  S3  Cal.  588;  Hintrager  v.  Mo- 
compelled,  as  all  courts  are,  to  receive  honey,  7S  Iowa.  537,  6  Lawyer's 
evidence  dehors  the  record  affecting  the  Rep.  Ann.  50,  43  N.  W.  Rep.  522. 
case  before  them  on  error  or  appeal."  An  attorney  can  not  settle  a  case  over 
See,  post,  "Agreed  Case."  the  known  objection  of  his  client.     Lee 

2  County  of  San  Mateo  v.  Southern  v.  Lord,  75  Wis.  35,  43  X.  W.  Rep.  799. 
Pacific  R.  Co.,  116  U.  S.  13S;  State  v.  See  as  to  agreement  of  parties  without 
Kansas  City,  etc.,  97  Mo.  331,  10  S.  W.  knowledge  of  the  attorneys.  Jackson 
Rep-S55-  v.  Cole,  Si   Mich.  440,  45"  X.  W.  Rep. 

3  United  States  v.  Phillips,  6  Peters,  S26. 

776-     See,  also,  Chicago,  etc.,  Co.  v.        B  State  v.  Westmoreland,  28  So.  Car. 
Dey,  76  Iowa,  27S,  41  X.  W .  Rep.  17.        625,  6  S.  E.  Rep.  S47. 


126  APPELLATE   PROCEDURE. 

appealable  interest  and  yet  not  be  entitled  to  prosecute  an  ap- 
peal, lie  may  preclude  himself  from  appealing  by  an  election 
of  remedies.  Thus,  a  party  may  elect  to  prosecute  a  suit  to 
review  a  judgment,  and  if  he  does  make  such  an  election  he  can 
not  appeal  from  the  same  judgment.1  This  doctrine  is  an  exten- 
sion of  the  principle  that  an  election  of  remedies  binds  the  party 
and  precludes  him  from  pursuing  different  remedies  after  having 
once  elected.2  The  principle  is  a  salutary  one  because  it  prevents 
parties  from  being  vexed  with  litigation,  and  because  it  secures 
one  decision  finally  terminating  the  controversy.  If  parties 
were  permitted  to  exhaust  one  remedy  and  then  take  advantage 
of  another,  confusion  would  result  and  litigation  be  unjustly 
prolonged. 

.^  150.  Waiver  and  Estoppel  by  accepting  benefit  of  judgment 
appealed  from — It  is  a  general  rule  that  a  party  who  accepts  the 
benefit  of  a  judgment  waives  a  right  to  prosecute  an  appeal 
from  it.3  This  doctrine  is  asserted  in  the  numerous  cases 
which  adjudge  that  a  party  who  accepts  payment  of  a  judg- 
ment can  not  afterwards  appeal  from  the  judgment  thus  satis- 
fied.4    The  same  general  principle  is  declared  and  enforced  in 

1  Harvey  v.  Fink,  m  Ind. 249;  Trad-  v.  Vert,  m  Ind.  40S;    Sterne  v.  Vert, 

ers  [ns.  Co.  v.  Carpenter,  85  Ind.  350;  ioSInd.232;  Test  v.  Larsh,  76  Ind.  452. 

Dunkle  v.  Elston,  71  Ind.  585;  Davis  v.  See,  ante,  p.  461,  462;    Kile  v.  Yellow- 

Binford,  70  Ind.  44;  Searle  v.  Whipper-  head,  So  111.  20S;  Sherman  v.  McKeon, 

man,  79  Ind.  424 ;   Indiana,  etc.,  Co.  v.  38  N.  Y.  266;   Glover  v.  Benjamin,  73 

Routledge,  7  Ind.  25;  Klebar  v.  Town  111.  42;  Bates  v.  Ball,  72  111.  10S;    Stin- 

of  Corydon,  80    Ind.   95;    Buscher   v.  son  v.  O'Neal,  32  La.  Ann.  947;  Board 

Knapp,    107    Ind.    340.       See    Masonic  of  Church  Wardens  v.  Perche,  40  La. 

Temple  Co.  r.  Commonwealth,  S7  Ky.  Ann.  201. 

349.  [2  S.  W.  Rep.  143;     Schweickhart  *  Newman  v.  Kizer  (Ind.),  26  N.   E. 

v.  Stuewe,  75  Wis.  157,  43  N.  W.  Rep.  Rep.  1006;  McCracken   v.  Cabell,   120 

722;  New  Orleans, etc., Co.  v.  Crescent  Ind.  266,  22  N.  E.  Rep.    136;    Stat 

City  Co.,  33  La.  Ann.  934.  Kamp,  m  Ind.  56,  11  N.  E.  Rep.  960^ 

-  <  roodraan  v.  Pocock,  15  Q^  B.  576,  Baltimore,  etc.,  Co.  v.  Johnson,  S4  Ind. 

583;  Scholeyt'.  Rew,  23  Wall. 331;  Lyon  420;   Patterson  v.   Rowly,  65   Ind.  10S; 

v  .Travelers  Ins.  Co.,  55  Mich.  141 ;  Long  Smith  v.  Coleman,  77  Wis.  343,  46   N. 

■    Fox,  100  111.  43;  Elliott  v.  Dycke,  78  W.  Rep.  664;   Moore  v.  Floyd,  4  Ore. 

Ala.  150;    Bradley  v.  Rogers,  ^  Kan.  260;  Lyons  v.  Bain,  1    Wash.  Ty.  482; 

[20;     Finlay    v.    Bryson,  84   Mo.   664;  Borgalthous  v.  Farmers',  etc.,  Co.,  36 

Thornton  v.  Baker,  15  R.  I.  553;  State  Iowa,  250;  Alexander  v.  Alexander,  104 

v .  McGuire,  40  La.  Ann.   578;     Witters  N.  Y.    643;     Chapman    v.    Sutton,    68 

Fed.  Rep.  700.  Wi>.  (157:   Edwards  v.  Perkins,  7  Ore. 

1  Clark  v.  Wright,  67  Ind.  224;  Sterne  149. 


PARTIES. 


L2; 


the  cases  which  hold  that  where  benefits  are  awarded  to  a  land 
owner  in  condemnation  proceedings,  an  acceptance  of  the  sum 
awarded  will  preclude  him  from  prosecuting  an  appeal.1  The 
principle  is  closely  akin  to  that  which  precludes  an  appeal  where 
the  controversy  is  terminated  by  a  satisfaction  of  the  judgment 
recovered  in  the  trial  court,  and  it  is,  therefore,  correctly  held 
that  a  voluntary  release  will  estop  a  party  from  prosecuting  an 
appeal  from  the  judgment  released.2  If  there  is  fraud  in  pro- 
curing the  release  or  entry  of  satisfaction,  that  may  be  shown 
on  appeal,  and,  if  shown,  will  destroy  the  affect  of  the  release 
or  entry.  Where  a  party  successfully  interposes  a  judgment  to 
defeat  proceedings  in  bankruptcy,  he  can  not  question  its  va- 
lidity.3 

§  151.  Exceptions  to  the  general  rule — The  rule  that  a  party 
who  accepts  benefit  from  a  judgment  can  not  appeal  is  not 
without  exceptions.  If  a  party  does  what  he  has  a  right  to  do 
without  affirming,  in  the  act  he  performs,  the  validity  of  the 
judgment,  he  does  not  estop  himself  from  prosecuting  an  appeal. 
It  will  be  observed  that  in  the  cases  in  which  it  has  been  held 


1  People  v.  Mills,  109  N.  Y.  69,  15  N. 
E.  Rep.  SS6;  Felch  v.  Gilman,  22  Vt. 
38;  Hawley  v.  Harrell,  19  Conn.  142. 
See,  ante,  notes  1  and  3;  Elliott  on 
Roads  and  Streets,  277;  ibid,  p.  2S6, 
n.  4. 

2  Trickey  v.  Schlader,  52  111.  7S; 
Guernsey  v.  Edwards,  26  N.  H.  224; 
Freeman  v.  Weeks,  45  Mich.  335.  Col- 
lecting by  execution  operates  as  an  es- 
toppel. Paine  v.  Woolley,  So  Ky.  568. 
The  doctrine  that  the  acceptance  of  a 
benefit  precludes  the  party  from  ques- 
tioning the  validity  of  that  which  se- 
cures him  the  benefit  is  far-reaching. 
Thus,  part  acceptance  will  ordinarily 
operate  as  an  estoppel.  Neal  v.  Field, 
6S  Ga.  534;  Murphy  v.  United  States, 
104  U.  S.  464;  Andrews  v.  United 
States,  16  Ct.  of  CI.  265.  See,  gener- 
ally, Jessup  v.  Spears,  3S  Ark.  457;  Gib- 
son v.  Hall,  57  Texas,  405.     So,  an  ac- 


ceptance of  benefits  under  an  unconsti- 
tutional statute  may  preclude  the  party 
from  challenging  its  validity.  Daniels 
v.  Tearney,  102  U.  S.415;  Robinson  v. 
Bank,  iS  Ga.  65;  Ferguson  v.  Land- 
ram,  1  Bush.  (Ky.),  54S;  Cary  v.  Whit- 
ney, 48  Me.  516;  State  v.  Mitchell,  31 
Ohio  St.  592;  Lee  v.  Tillotson,  24 
Wend.  337;  Burlington,  etc.,  Co.  v. 
Stewart.  39  Iowa,  267;  Perryman  v. 
Greenville,  51  Ala.  507;  People  v.  Mur- 
ray, 5  Hill,  46S;  Coleman  v.  Morrison, 
1   A.  K.  Marsh,  406. 

3  Cornwall  v.  Davis,  3S  Fed.  Rep. 
S78.  See,  generally,  State  v.  Harland,  74 
Wis.  11,  41  N.  W.  Rep.  1060;  Massic  :. 
Brady,  41  La.  Ann.  553.  A  party  who 
once  repudiates  an  award  can  not  sub- 
sequently make  it  available.  Hamilton 
v.  Hart,  125  Pa.  St.  142,  17  Atl.  Rep. 
226. 


[28  APPELLATE  PROCEDURE. 

that  an  estoppel  exists,  the  act  necessarily  affirmed  the  validity 
of  the  judgment.  Thus,  where  a  party  accepts  money  or  prop- 
erty awarded  him  by  a  judgment,  he  concedes  the  validity  of 
the  judgment,  since  it  is  by  virtue  of  the  judgment  that  he  ob- 
tains the  money  or  property.  But  there  are  cases  where  a 
remote  and  incidental  benefit  is  derived,  and  yet  the  right  of 
appeal  exists.  Thus,  where  a  plaintiff  prosecutes  two  actions 
for  the  same  cause  the  defendant,  by  moving  to  be  released 
from  one  of  them,  does  not  preclude  himself  from  prosecuting 
an  appeal.1  In  such  a  case  the  moving  party  does  no  wrong  to 
the  court  or  to  the  adverse  party,  but  stands  simply  upon  a  clear 
legal  right.2  Where  the  action  of  the  appealing  party  appears 
to  have  resulted  from  an  excusable  mistake,  then  he  should  be 
allowed  to  appeal  unless  to  grant  him  the  right  of  appeal  would 
unjustly  prejudice  the  adverse  party.3 

£  152.   Payment  by  defendant  not  a  Waiver  nor  an  Estoppel — It 

is  obvious  that  there  is  an  essential  difference  between  one  who 
pays  a  judgment  against  him  and  one  who  accepts  payment  of 
a  sum  awarded  him  by  a  judgment.  Payment  by  a  party 
against  whom  a  judgment  is  rendered  may  often  be  necessary 
to  protect  his  property  from  sacrifice,  and  what  a  party  does  to 
prevent  the  sacrifice  of  his  property  can  not  with  any  tinge  of 

1  Pittsburgh,  etc.,  Co.  v.  Swinney,  91  Lawrence  v.  Ballou,  50  Cal.  2vS:  Sar- 
[nd.  399;  Green  Bay,  etc.,  Co.  v.  Hewitt,  gent  v.  Flaid,  90  Ind.  501.  But  the  rule 
62  Wis.  316.  can  not  be  pressed   too   far  without  in- 

2  The  rule  which  precludes  an  appeal  justice.  Mr.  Bigelow  justly  sums  up 
i-  designed  to  prevent  a  party  from  when  he  savs:  "  Where,  then,  no 
taking  inconsistent  positions  to  the  wrong  would  be  clone  to  the  court  or  to 
harm  or  prejudice  of  his  adversary.  It  other  parties  to  a  cause  by  permitting 
i^  illustrated  in  a  great  variety  of  cases  a  change  of  position,  a  change  should, 
and  is  often  given  effect.  Nitche  v.  in  principle,  and  will  be  in  fact,  al- 
Earle,  117  Ind.  270;  Dinwiddie  v.  State,  lowed."  Bigelow  Estoppel  ("5th  Ed.). 
103  Ind.  ioi;   Hinton  v.  Whittaker,  101  722. 

Ind.  344.     The    case    of    Harbaugh    v.  3  Queen  v.  Liverpool.  15  Q^B.  (N.  S.) 

A-lbertson,  [02  I  nd.  69,  supplies  a  strong  1070;  Queen  ^.Buckinghamshire^  El.  & 

illustration  of  the  rule.     See,  generally,  15.  260;  Yeaton  v.  Lenox,  S  Peters,  123; 

Wood   :•.  Rawlings,  76    111.  206;    Iron  United  States  v.  Curry, 6  How.  (U.  S.) 

Mountain  Bank  v,  Armstrong,  92    Mo.  106.     We  suppose  that  it  must  appear 

265;    Railway  Co.  v.    McCarthy.  96   U.  that  the  mistake  was  an  excusable  one 

S.  258;   Garber  v.  Doersom,  117  Pa.  St.  and  that  in  permitting  its  correction  no 

162;  Bonham  v.  Bishop,  23  So.  Car.  96;  legal  harm  is  done  the  opposite  party. 


PARTIES.  129 

justice,  be  held  to  preclude  him  from  assailing  the  judgment.1 
Our  cases  holding  that  payment  by  the  defendant  does  not  estop 
him2  from  prosecuting  an  appeal  rest  on  solid  ground  and  are 
sustained  by  the  decisions  of  other  courts.3  The  principle  that 
a  party  may  protect  his  property  from  sacrifice  by  a  forced  sale 
upon  an  execution  sustains  the  decision  that  a  defendant  does 
not  preclude  himself  from  prosecuting  an  appeal  by  securing 
an  entry  of  replevin  bail.  If  the  defendant  should  agree  not 
to  prosecute  the  appeal  and  in  consideration  of  such  an  agree- 
ment the  creditor  should  abate  part  of  the  recovery,  extend  the 
time  of  payment,  or  do  some  other  act  of  a  similar  character, 
then,  the  right  of  appeal  would  be  waived  since  the  controversy 
would  be  terminated.4 

§  153.   Against  Whom  an  Appeal  may  be  prosecuted — Generally — 

In  the  preceding  paragraphs  of  this  chapter  we  have  discussed 
the  question  of  parties  with  especial  reference  to  the  rights  of 
parties  who  prosecute  appeals,  but  we  have,  as  a  necessary  in- 
cident of  the  main  topic,  referred  in  a  general  way  to  the  ne- 
cessity of  prosecuting  the  appeal  against  the  necessary  parties. 
In  the  succeeding  paragraphs  of  the  present  chapter  we  shall 
treat  more  especially  of  the  parties  against  whom  an  appeal 
may  be  prosecuted.  As  we  have  said,  the  parties  to  the  record 
are  not  always  necessary  parties  to  the  appeal,  nor  are  those 
who  were  not  parties  to  the  record  as  originally  made  always 
to  be  overlooked  in  prosecuting  an  appeal.  A  succession  in 
estate  or  in  right  may  sometimes  require  parties  to  be  notified 
on  appeal  who  were  not  parties  in  the  trial  court,  but  the  gen- 

1  Factors,  etc.,  Co.  v.  New  Harbor,  pursuant  to  a  decree  was  held  not  to 
€tc,  Co.,  37  La.  Ann.  233.  waive  the  right   of  appeal.     O'Hara  v. 

2  Armes  v.  Chappel,  28  Ind.  469;  MacConnell,  93  U.  S.  150. 
Dickensheets  v.  Kaufman,  29  Ind.  154;  *  This  conclusion  results  from  the 
Hill  v.  Starkweather,  30  Ind.  434;  settled  doctrine  that  where  there  is  no 
Hyer  v.  Norton,  26  Ind.  269;  Belton  v.  actual  controversy  there  can  be  no  ap- 
Smith,  45  Ind.  291 ;  Bruce  v.  Smith,  44  peal.  Cleveland  v.  Chamberlain,  1 
Ind.  1.  Black,  419;     Terry   :•.  Abraham,  93  U. 

3  Edwards  v.  Perkens,  7  Oregon,  149;  S.  3S;  Steele  v.  White,  2  Paige,  47S; 
Haj'es  v. Nourse,  107  N.  Y.577;  Chap-  Kelly  *.  Israel,  11  Paige,  147;  Bush  v . 
man  v.  Sutton,  6S  Wis.  657;  Burrows  Rochester  Bank,  4S  N.  Y.  659. 

v.  Mickler,  22  Fla.  577.     A  conveyance 

9 


130  APPELLATE   PROCEDURE. 

eral  rule  is  that  only  parties  to  the  judgment  or  decree  are  nec- 
essary parties  on  appeal. 

§  154.  Appellees — Who  should  be — (ieueral  Rules — In  determin- 
ing against  whom  an  appeal  may  be  prosecuted  it  is  important 
to  keep  in  mind  the  cardinal  rule  that  it  is  essential  to  an  effect- 
ive judgment  that  all  of  the  interested  parties  should  be  in  court. 
Parties  are  necessary  to  the  effectiveness  of  the  judgments  of 
appellate  tribunals  as  well  as  to  the  judgments  of  trial  courts.1 
But,  for  obvious  reasons,  the  specific  rules  which  govern  the 
procedure  in  the  trial  court  can  not,  as  will  appear  as  we  pro- 
ceed, be  always  rightfully  or  justly  enforced  on  appeal.  The 
positions  of  parties  and  their  interests  are  often  so  shifted  and 
changed  by  the  judgment  or  decree  of  the  trial  court  that  those 
who  appeared  below  as  adversary  parties  become,  on  appeal, 
parties  on  the  same  side  in  so  far  as  the  question  of  interest  is 
ruled  by  mutuality.  While  it  is  probably  true,  as  a  general 
rule,  that  adverse  parties  in  the  trial  court  remain  adverse 
parties  on  appeal,  yet  the  exceptions  are  so  numerous  and  so 
important  that  it  will  not  do  to  blindly  accept  as  a  guide  on  ap- 
peal the  rules  which  govern  the  procedure  in  courts  of  original 
jurisdiction. 

§  155.  Persons  united  in  Interest — Rights  of — It  is  true,  in  most 
instances,  that  all  who  were  united  in  interest  by  the  judgment 
in  the  trial  court  and  who  would  be  benefited  by  its  reversal 
remain  united  on  appeal,  nor  is  this  result  changed  by  the  fact 
'that  part  only  of  such  parties  appeal.  Those  united  in  interest 
with  the  appellants  can  not  become  appellees.  Theoretically, 
at  least,  there  is  no  right  to  prosecute  an  appeal  against  a  party 
united  in  interest  with  the  party  who  seeks  a  reversal  of  the 
judgment.2  The  rule  that  one  of  several  co-parties  may  ap- 
peal does  not,  by  its  practical  operation,  make  the  parties  united 
in  interest  by  the  judgment  below  adversary  parties  on  appeal. 
The  rule  as  interpreted  by  our  court  is  this  :    Where  the  parties 

1  Shirley  f.  Lunenbergh,  u  Mass.379;         2  In  such  a  case  there  would  usually 
State  v.  Baldwin,  70  Iowa,  1S0;   Harper     he  no  actual  controversy  and  hence  no 
v.  Bibb,  45  Ala.  670;    England  v.  Mc-     right  of  appeal. 
Laughlin,  35  Ala.  590.     See,  also,  ante, 
§§  120,  121,  123,  and  notes. 


PARTIES.  131 

are  united  in  interest  by  the  judgment  rendered  below  they 
are  appellants  on  appeal,  if  parties  at  all.  If  one  of  several 
parties  so  united  in  interest  appeals  it  is  his  duty,  as  we  have 
seen,1  to  give  notice  to  his  co-parties  ;  if,  after  notice,  they  re- 
fuse to  join  in  the  appeal,  the  case  should  be  dismissed  as  to 
them,  but  if  they  do  not  refuse  to  join  they  remain  in  court  as 
appellants.2  They  do  not,  in  any  event,  occupy  the  position 
of  appellees.  It  is  evident,  therefore,  that  the  doctrine  re- 
specting appeals  by  one  of  several  co-parties  does  not  infringe 
upon  the  rule  that  those  who  were  adverse  parties  below  con- 
tinue to  be  adverse  parties  on  appeal.  From  this  results  the 
general  rule  that  those  who  were  adverse  to  the  parties  who 
appeal  are  the  parties  against  whom  the  appeal  must  be  prose- 
cuted and  who  become  the  appellees  in  the  appellate  tribunal. 

§  156.  How  persons  originally  Co-parties  may  become  Adversa- 
ries— Parties  brought  before  the  trial  court  as  adverse  to  the 
plaintiff  and  as  having  a  common  interest  may  become,  as  be- 
tween themselves,  adversary  parties,  and  when  this  occurs  it 
must  be  true,  upon  principle,  that  on  appeal  by  one  of  such 
parties  he  must  treat  the  party  whose  judgment  he  assails  as 
an  adversary  and  not  as  a  co-party.  Thus,  if  two  persons  are 
brought  in  to  answer  as  to  their  interests  and  one  files  a  cross- 
complaint  or  counter-claim  against  the  other,  presenting  a  dis- 
tinct and  independent  issue  affecting  only  the  party  against 
whom  the  cross-complaint  or  counter-claim  is  filed,  an  apper 
from  a  judgment  on  such  an  issue  must  be  taken  against  th 
defendant  to  the  cross-complaint  or  counter-claim  as  an  adverse 
part}-  and  not  as  a  co-party.     If,  to  further  illustrate,  three  per- 

1  Ante,  §§  13S,  140,  141,  142,   143,  144.  be  regarded  as  having  joined  and  shall 

'  "  It  is  the  correct  practice,"  said  the  be  liable  for  their  due  proportion  of  the 

court,  in  Rabb  v.  Graham,  43   Ind.   1,  costs.     If    they   decline    to   join,   their 

"to  unite  with  those  who  do  not  appeal,  names  may  be  stricken  out  on  motion, 

those  who  appeal,  in  taking  the  appeal  and  they  shall  not  take  an  appeal  after 

and  assigning  the  errors;    those  who  wards,  nor  shall  they  derive  any  benefit 

appeal  must  then  serve  notice  on  those  from  the  appeal,  unless  from  the  nec<  s- 

who  do  not,  and  file  the  proof  thereof  sity  of  the  case,  except  persons  under 

with  the  clerk  of  this  court.     Then,  un-  legal  disabilities."     See.    also,    Millsap 

less  the  parties  thus  notified  appear  and  v.  Stanley,  50  Ala.  319. 
decline  to  join  in  the  appeal  they  shall 


APPELLATE   PROCEDURE 

sons  are  jointly  sued  and  one  of  the  defendants  asserts,  by  the 
appropriate  pleading,  that  he  is  the  surety7  of  the  other  two  but 
makes  no  issue  as  to  the  plaintiff's  right  to  recover  against  him 
as  principal,  the  judgment  on  the  issue  tendered  is,  as  against 
the  other  defendants,  independent  and  distinct,1  so  that  on  an  ap- 
peal from  that  judgment  the  party  who  tenders  the  issue  upon 
which  it  is  pronounced  is  an  adversary  of  the  other  defendants. 
The  unity  of  interest  is  completely  severed  and  the  severance 
creates  hostile  relations.  So,  where  a  personal  judgment  was 
rendered  in  favor  of  a  material  man  against  a  sub-contractor 
employed  to  erect  a  building,  and  this  judgment  was  not  ques- 
tioned, but  a  contest  was  waged  between  the  owner  and  the 
material  man  as  to  the  right  to  enforce  a  lien,  it  was  held  that  the 
sub-contractor  was  not  a  necessary  party  to  the  controversy  on  ap- 
peal between  the  material  man  and  the  owner.2  Again,  where  an 
order  is  made  directing  the  payment  of  money  to  one  of  two 
defendants,  and  the  one  who  is  defeated  in  his  effort  to  secure 
the  money  appeals  from  the  judgment,  his  co-defendant  be- 
comes his  adversary  on  appeal.3 

§  157.  Termination  or  chauge  of  interest — Effect  of — Where  a 
party  ceases  to  have  an  interest  in  the  controversy  his  presence 
on  appeal  is  unnecessary  ;  it  is,  indeed,  according  to  some  of 
the  courts,  improper  to  join  him  in  the  appeal.4  It  is  only  those 
who  are  injured  that  can  properly  be  appellants.5  If,  therefore, 
the  injury  is  by  one  party  to  another  they  are  the  hostile  parties, 
and  if  the  judgment  be  independent,  affecting  them  alone,  the 
injured  person  must  be  the  appellant  and  his  opponent  the  appel- 
lee ;  otherwise  it  would  result  that  the  injured  and  the  injurer  are 
on  the  same  side  and  are  theoretically  bound  together  as  allies, 

1  De  Sylva  v.  Henry,  3  Porter  (Ala.),  59S:  Shirley  v.  Burch,  16  Ore.  1,  18  Par. 
132;  Joi  Etheridge,  6  Port  (Ala.),     Rep.  344;   Railroad  Co.  v.  Johnson,  15 

generally,  Bumpass -w.Webb,  4  Wall. 8;  Keller  v.  Boatman,  49  Ind.  101. 

Porter  (Ala.),  65.  3  Rose  V.  Baker,  99  N.  C.  323. 

2  Davis  Henderson  Lumber  Co.  v.  *  Kelly  v.  [srael,  11  Paige,  147;  Mills 
Gottschalk,  Si    Cal.  641;    Germain  v.  -'.  Hoag,  7  Paige,  iS. 

Mason,   12  Wall.  259.      See,  generally,         5  Porter  v.  Rummery,   10    Mass.  64; 
Brewster    v.  Wakefield,  22    How.   (U.    Jackson  v.  Hosmer,  14  Mich.  SS. 
S      mS;     Marsh  v.  Nichols,  120  U.  S. 


PARTIES.  133 

whereas  they  are,  in  fact,  adversaries.  A  severance  does  not 
always  create  hostile  relations,  but  parties  brought  before 
the  trial  court  on  the  same  side  may  sometimes  sever  and  so 
sever  as  to  become  adversaries.1  The  principal  reasons  why 
all  who  were  united  in  interest  in  the  court  of  original  jurisdic- 
tion must  be  appellants  in  the  appellate  tribunal  are,  (i)  that 
cases  can  not  be  carried  up  piecemeal,  and  (2)  one  cause  of  ac- 
tion, or  defense,  can  not  be  split  into  fragments,2  but  both  of 
these  reasons  fail  where  there  is  such  a  diversity  of  interest  as 
makes  the  parties  hostile.  Where  the  parties  do  become  antag- 
onists upon  an  independent  issue  and  become  such  because 
of  the  nature  of  their  respective  interests,  the  party  injured  by 
the  judgment  of  the  trial  court  has  an  interest  in  overthrowing 
it,  and  hence  may  appeal ;  on  the  other  hand,  the  person  bene- 
fited by  the  judgment  has  an  interest  in  maintaining  it  and  is 
naturally  and  logically  an  appellee  and  not  a  co-appellant  with 
the  person  to  whom  the  judgment  causes  loss  or  injury. 

§  158.   Influence  of  the  Chancery  element  of  Code  procedure — An 

appeal  under  the  code  system,  as  has  been  elsewhere  shown,3 
is  composite,  blending  in  one  proceeding  the  common  law  ele- 
ments of  the  procedure  in  cases  of  writs  of  error  and  the  ele- 
ments of  chancery  practice  as  embodied  in  the  system  of  ap- 
peals, so  that  regard  must  be  had  to  the  chancery  practice  in 
all  cases  of  equitable  cognizance.  Under  the  chancery  system, 
now  so  generally  woven  into  remedial  justice  by  the  codes, 
parties  might  change  relations  in  the  court  of  original  jurisdic- 
tion, and  so  change  as  to  become  in  reality  hostile  although 
nominally  on  the  same  side.  If  the  case  is  one  where,  by  the 
rules  of  equity  or  by  the  provisions  of  the  statute,  interests  may 
be  severed  and  positions  changed,  the  decree  ma}-  atfect  such 

1  Prince  :■.  r>ates.  19  Ala.  105;  Thomp-  nating  one  so  far  as  matters  of  proced- 
son  v.  Campbell,  52  Ala.  583;  Glover  v.  ure  are  concerned,  but  still  it  has  not 
Lyon,  57  Ala.  365;  Ellis  ;•.  Bullard,  11  entirely  supplanted  the  law  element. 
Cush.  41/.;  Andrews  v.  Steele,  7  C.  E.  It  has.  however,  driven  out  many 
Green     X.  J.).  478.  merely  technical  rules  and  many  merely 

2  Huckabee  v.  Nelson,  54  Ala.  12.  formal    requirements    of   the    common 

3  "Appellate    Jurisdiction,"    Chapter  law  procedure. 
II.     The  chancery  element  is  the  domi- 


1.34 


APPELLATE   PROCEDURE. 


a  change  as  will  create  antagonistic  relations  and  independent  is- 
sues. Where  the  decree  severs  the  interests  upon  issues  framed 
by  the  parties  and  places  two  persons  who  came  in  as  defend- 
ants in  hostile  attitudes,  then  one  of  the  two  must  be  injured  by 
the  decree  and  the  other  benefited  by  it,  so  that  the  injured 
party  may  prosecute  an  appeal  as  the  appellant  against  the 
party  whom  the  decree  benefits.1  One  has  an  interest  in  re- 
versing the  decree,  the  other  in  sustaining  it. 

§  159.  Relation  of  Parties  in  Trial  Court  generally  continues  on 
Appeal — That  the  attitude  of  the  parties  rendered  hostile  by  the 
decree  of  the  lower  court  generally  remains  hostile  on  appeal  is 
proved  by  the  fact  that  as  to  such  matters  the  appeal  is,  in  effect, 
a  continuation  of  the  original  litigation.2  As  the  litigation  is  con- 


1  This  principle  is  illustrated  by  the 
decision  in  the  case  of  Vandevecr  v. 
Holcomb,  2  C.  E.  Green  (17  N.J.  Eq.), 
^47.  In  that  case  the  complainant 
brought  suit  to  foreclose  a  senior  mort- 
making  the  mortgagor  and  two 
junior  mortgagees  parties  defendant. 
One  of  the  junior  mortgagees  filed  a 
cross-bill  assailing  the  mortgage  of  the 
other  defendant,  and  it  was  held  that  an 
appeal  could  be  maintained  by  the  un- 
successful defendant  as  the  appellant. 
In  the  course  of  the  opinion  it  was  said: 
"  In  a  court  of  equity,  a  decree  may  be 
made  determining  the  rights  of  co-de- 
fendants in  a  controversy  among  them- 
selves in  which  the  complainant  has  no 
interest,  when  the  question  is  brought 
before  the  court  by  the  pleadings  and 
the  proofs."  The  court  cited  Shannon 
-  Marselis,  Saxt.  (N.J.)  413;  Ames  v. 
New  Jersey  Franklinite  Co.,  1  Be. 
<  N .  ].).  66;  Harris  v.  Ingledew,  3  P. 
W.  98;  Chamlej  v  Lord  Dunsany,  2 
Schf.  &  Let'.  690,  710.  Conry  v.  Caul- 
field,   2   Ball   &   Beatty,  255;   Elli. 

1   Paige,  263.    Hudnit  v.  Nash,  1 
1     E.  ( rreen  (  N.  [.),  550. 

tions  v    Johnson,  24  How.  195, 

2o;  .  ...    etc..    V      Cow  ell,    6    Col. 

73;   Connor  v.  Connor,  4  Col.  74. 


holtz  v.  Wilbur,  4  Col.  434.  See,  gen- 
erally. Wiscart  v.  D'Auchy,  3  Dall.  321, 
327;  Rawson  v.  Adams,  17 Johns.  130; 
Leach  v.  Blakely,  34  Yt.  134,  136;  Rob- 
inson v.  Magarity,  28  111.  423.  In  John- 
son v.  Nation,  supra,  it  was  said,  in 
speaking  of  an  appeal:  "'According  to 
the  practice  in  this  court  it  is  rather  a 
continuation  of  the  original  litigation 
than  the  commencement  of  a  new  ac- 
tion, and  such,  it  is  believed,  is  the  gen- 
eral understanding  of  the  profession  in 
the  United  States.  Cohens  v. Virginia, 
(1  Wheat,  264;  Clarke  v. Matthewson,  12 
Peters,  164,  170."  It  is  no  doubt  true  that 
the  appeal  is  a  continuation  of  the  liti- 
gation hut  nol  in  the  court  of  original 
turisdiction.  The  appeal,  if  so  taken  as 
to  be  effectual,  completely  transfers  the 
cause  to  a  new  forum.  To  have  the 
effect  of  transferring  the  cause  the  law 
authorizing  the  transfer  must  he  fully 
complied  with  by  the  appellant.  Bon- 
durant  v.  Watson,  103  U.  S.  2S1;  Ray 
v.  Law.  3  Cranch.  179.  Even  consent 
can  not  change  the  mode  of  appeal. 
The  Nonesuch,  9  Wall.  504;  Ballance  v. 
Forsyth,  21  How.  3S9;  Sampson  v. 
Welsh.  24  lh.w.  207;  Mills  v.  Brown. 
"  Peters,  525.  Webster  v.  Buffalo  Ins. 
Co..  no  U.  S.  3S6. 


PARTIES.  135 

tinued  by  the  appeal  and  not  originated  by  it,  the  conclusion  that 
the  stakes  of  the  parties  as  fixed  by  the  issues  and  decree  in  the 
trial  court  must  ordinarily  remain  unchanged  is  unavoidable.  If 
hostile  below  they  are  hostile  on  appeal.  This  conclusion  har- 
monizes with  the  general  principles  of  procedure  and  is  in  ac- 
cordance with  the  decision  that  co-parties  remain  appellants,,  if 
parties  at  all,  in  the  appellate  tribunal,  although  one  only  of 
several  actually  prosecutes  the  appeal. 

§  160.  Appealable  interest — How  shown — It  has  been  said  by 
an  able  court  that,  "The  true  test  of  the  necessary  parties  to 
an  appeal  is  this :  Has  the  party  an  interest  that  the  judgment 
appealed  from  be  maintained?"1  This  is,  in  a  general  sense, 
correct,  but  it  really  presents  one  side,  only,  of  the  question,  for 
a  part}'  may  have  an  interest  in  overthrowing  the  judgment.  It 
must  be  true  that  one  who  has  such  an  interest  is  a  necessary 
party,  since,  upon  the  fundamental  principle  elsewhere  dis- 
cussed, all  parties  having  a  substantial  interest  in  maintaining 
or  in  overthrowing  a  judgment  respecting  the  particular  contro- 
versy determined  by  it  are  necessary  parties.  In  the  one  case 
they  are  properly  appellants  ;  in  the  other,  they  are  properlv 
appellees.  But  the  question  we  are  here  especially  concerned 
with  is,  how  shall  this  interest  be  shown?  That  it  must  always 
be  shown  by  the  record  may  be  safely  affirmed.  It  is  safe  to 
affirm  this  for  the  reason  that  appellate  tribunals  investigate  and 
determine  questions  by  and  from  the  record.  Questions  of  fact 
concerning  the  particular  interests  of  parties  and  their  relations 
to  each  other  are  to  be  determined  upon  the  record  before  the 
tribunal,  as  it  does  not  look  beyond  the  record.  It  is  not,  how- 
ever, invariably  true  that  the  appellate  tribunal  considers  only 
the  record  made  by  the  trial  court,  for,  after  the  cause  comes 
fully  within  the  jurisdiction  of  the  higher  court,2  parties  may  be 
changed  where  changes  are  required  by  events  occurring  after 
the  case  leaves  the  jurisdiction  of  the  trial  court.  The  appel- 
late tribunal  undoubtedly  has  power  to  make  all  needful  and 

1  Ivy  v.  Lusk,  ii  La.  Ann.  4S6.  effective  appeal  completely  removes  a 

2  In  the  chapter  treating  of  the  effect     case  from  the  jurisdiction  of  the  trial 
of  an  appeal  we   have   shown   that   an     court. 


13G  APPELLATE  PROCEDURE. 

proper  changes  of  parties  in  furtherance  of  justice.  It  has  not, 
of  course,  power '  to  so  change  parties  as  to  alter  the  nature 
or  scope  of  the  original  controversy,  since  that  would  violate  the 
fundamental  principle  that  appellate  jurisdiction  is  essentiallv 
one  of  review,  but  it  has  power  to  make  such  orders  as  will 
'  make  its  judgments  effective,  and  to  accomplish  this  it  is  some- 
times necessary  to  take  steps  to  bring  before  it  parties  who  have 
become  necessary  and  proper  parties  because  of  changes  in 
positions  and  interests.  It  does  not  imply  a  violation  of  the 
rule  that  the  record  must  show  an  appealable  interest  to  say  that 
parties  may  be  changed  on  appeal  ;  this  is  true  for  the  reason 
that  what  the  appellate  tribunal  orders  or  adjudges  is,  in  the 
strict  sense,  part  of  the  record.  So  where  petitions  or  motions 
respecting  parties  are  filed  in  the  appellate  tribunal  after  its 
jurisdiction  attaches,  they  become  part  of  the  record  of  that 
tribunal.  Such  petitions  or  motions  are  none  the  less  parts  of 
the  record  on  appeal,  because  they  may  bring  in  matters  that 
do  not  appear  in  the  record  of  the  trial  court,2  for  the}'  could  not 
there  appear,  inasmuch  as  such  matters  are  subsequent  to  the 
cessation  of  the  trial  court's  jurisdiction.  But  persons  who  were 
not  parties  in  the  trial  court,  or  are  not  the  successors  or  rep- 
resentatives of  such  parties,  can  not  be  brought  in  for  the  first 
time  on  appeal,  for  the  reason,  among  others,  that  the  record 
can  not  be  made  to  show  an  appealable  interest.3  Parties  nec- 
essary to  the  action  must,  it  is  not  much  aside  from  our  discus- 
sion to  say,  be  made  in  the  court  of  original  jurisdiction,  for  a 
failure  to  bring  in  necessary  parties  in  the  first  instance  can  not 
be  remedied  on  appeal.  It  is,  in  general,  true  that  the  record 
as  made  in  the  trial  court  must  show  the  appealable  interest, 
and  in  the  great  majority  of  instances  it  is  shown  by  that  record. 

1  Power  implies  right.   Carr  v.  State,  664;  Knox  v.  Exchange  Bank,  12  Wall. 

127   End.  204,  11    Lawyers'  Rep.   Ann.  379;  Taylor  v.  Savage,  1  How.  (U.  S.) 

570,  371.      We   use   the    word    not   as  2S2;  Taylor  v.  Savage,  2  How.  (U.  S.) 

meaning  arbitrary  might,  but  as  mean-  375;   Hinckley  v.  Gilman,  etc.,  Co.,  94 

ing  rightful  authority.  U.  S.  467;  Hovey  v.  McDonald,  109  U. 

-'  This    i  "'ily   true    in   cases  S.  150. 

where    receivers,    assignees    in    bank-         3  Payne    v.  Niles,   20    How.   (U.   S.) 

ruptcy,  or  like  special  representatives,  219;  Taylor  ?>.  Savage,  2  How.  (!'    3 

ie  rights  of  the   original  394. 
parties,     llerndon  v.  Howard,  9  Wall. 


PARTIES.  137 

Where  it  is  shown  by  the  transcript  filed  on  appeal  that  there  is 
an  appealable  interest,  nothing  further  need  be  shown,  but  it  is 
necessary  to  so  describe  the  parties  as  that  their  respective  po- 
sitions and  relations  as  parties  to  the  appeal  may  appear.1  It 
may  be  further  remarked  that  the  record  should  show  the  ad- 
verse relations  of  the  parties,  inasmuch  as  where  there  is  no 
hostile  relation  there  can  be  no  actual  controversy,  and  if  no 
actual  controversy,  no  appealable  interest  can  exist  in  any  of 
the  parties.2  The  test  for  ascertaining  who  are  necessary 
parties  to  the  appeal  mentioned  in  the  first  sentence  of  this  par- 
agraph applies  to  cases  where  the  record  shows  that  parties 
nominally  on  the  same  side  are,  in  reality,  on  opposite  sides,  for 
where  the  real  nature  of  the  controversy  and  the  relations  of  the 
respective  parties  are  disclosed,  the  appellate  tribunal  can  de- 
termine whether  the  case  is  one  in  which  the  adverse  relations 
are  such  as  create  appealable  interests.  But  where  the  record 
shows  that  the  parties  were  on  the  same  side  originally,  it  will  be 
presumed,  in  the  absence  of  a  countervailing  showing,  that  there 
was  no  change  in  position,  and  hence  were  no  adverse  interests, 
so  that  where  one  of  several  original  plaintiffs  or  defendants  de- 
sires to  prosecute  an  appeal  against  the  other,  so  much  of  the 
record  as  shows  the  nature  of  the  controversy,  and  the  real  re- 
lation of  the  parties,  must  be  before  the  court  on  appeal.3 

§  161.  Effect  of  change  of  the  Positions  of  Parties — It  is  impor- 
tant to  determine  when  those  who  were  originally  co-parties 
became  adverse,  for  the  reason  that  notice  to  adverse  parties  is 
not  the  same  as  notice  to  co-parties,  and  for  the  further  reason 

1  The  parties  must  be  appropriately  transcript     shows    their    identity    and 
described  on  appeal  so  that  a  reference  interest,    it    is    sufficient.      Gumbel    v. 
to  the  transcript  will  disclose  their  ap-  Pitken,  113  U.  S.  545;   Miltenberger  v. 
pealable  interest  and  the  nature  of  that  Logansport,  etc.,  Co.,   106   U.    S.    286; 
interest.     Smyth  v.   Strader,   12    How.  Mussina  v.  Cavazos,  6  Wall.  355. 
(U.  S.)  327;   Davenport  v.  Fletcher,  16  2  As    elsewhere   said,  where    the   re- 
How.    (U.     S.)     142;     The    Protector,  lations  appear  to  be  adversary  and  the 
11    Wall.  S2;    Deneale    v.    Archer,   8  action  an  ordinary  one,  the  presumption 
Pet.  526;   Miller  v.  McKenzie,  10  Wall,  is  that  there   is   an   actual    and   not    a 
5S2;     Wilson    v.   Life    and    Fire    Ins.  feigned  controversy.     Ante,  §  148. 
Co.,    21    Pet.    140.     If  parties  are   de-  3  Milner  v.  Meek.  95  U.  S.  252. 
scribed    so    that    an    inspection '  of  the 


138  APPELLATE  PROCEDURE. 

that  co-parties  become  appellants  while  adverse  parties  become 
appellees.  As  parties  must  be  appropriately  and  fully  named 
and  described  in  the  assignment  of  errors.1  it  is  essential 
thai  their  true  relations  should  be  ascertained.  It  is  probably 
true  that  those  who  were  co-parties  below  will  so  remain  in  the 
very  great  majority  of  cases,  but  there  are  cases  in  which  their 
interests  are  not  simply  severed,  for  they  are  antagonistic. 
Where  they  are  antagonistic  and  the  issue  is  clearly  independ- 
ent and  distinct,  then  they  must  be  adverse  parties  on  appeal  as 
to  that  issue,  since  it  can  not  be  legally  possible  that  one  of  two 
hostile  parties  can  prosecute  an  appeal  for  the  other  where  it 
affects  onlv  the  matter  over  which  they  are  fighting. 

§  162.  Within  what  time  Parties  must  be  brought  in — It  is  not 
consistent  with  principle,  nor  with  the  rules  essential  to  the  or- 
derly and  effective  administration  of  justice,  that  one  who  pros- 
ecutes an  appeal  should  be  permitted  to  negligently  delay  the 
bringing  in  of  necessary  parties  until  after  the  expiration  of  the 
time  designated  by  law  as  that  within  which  the  right  to  appeal 
exists.  A  negligent  party  who  sleeps  upon  his  rights  meets 
with  little  favor  in  any  court  either  of  equity  or  law.  Where  a 
right  is  given  a  party  upon  the  condition  that  he  exercise  it 
within  a  fixed  time  he  must  exercise  it  within  that  time  or  it 
will  be  lost.  It  is,  therefore,  correctly  held  that  all  necessary 
parties  must  be  brought  in  within  the  time  fixed  b}^  law  or  the 
appeal  will  be  dismissed.2  The  general  rule  is,  doubtless,  not 
without  exceptions,  but  it  nevertheless  governs  where  no  cause 
is  shown  excusing  the  delay. 

§  163.   Effect  of  the  Appeal  upon  Go-parties  who  decline  to  join — 

The  class  created  by  the  statutory  provisions  which  declare 
that  parties  who  decline  to  join  in  the  appeal  after  notice  is  a 
peculiar  one,  and  one  to  which  it  is  difficult  to  assign  a  place 
in  logical  sequence  or  method  ;  but,  as  it  is  anomalous,  it  must 

1  Post,  §  332.  illon,  26  Hun.  665;   Cotes  v.  Carroll,  28 

2  Holloran  v.  The  Midland  Railway  How.  IV.  436;  Curten  v.  Atkinson,  29 
Co.  (Ind.),  2S  N.  E.  Rep.  549.  A  doc-  Neb. 612,  46  X.  W.  Rep.  91.  See.  also, 
trine  very  similar  to  thai    of    the    case  ante,  §§  m  to  120. 

rsi  hi    v.    I  lam- 


PARTIES.  139 

be  arbitrarily  given  a  place  and  hence  may  as  well  be  consid- 
ered here  as  elsewhere.  The  persons  who  refuse  to  join  are 
not  parties  in  the  strict  sense,  yet  they  may,  nevertheless,  be 
affected  l  by  the  appeal.  The}'  may  be  affected  in  two  ways,  by 
being  deprived  of  a  right  to  themselves  subsequently  prosecute 
an  appeal  ;  by  being  deprived  of  the  benefit  of  the  appeal  in 
the  event  that  it  is  successful.2  Their  interests  are  involved 
but  they  are  not  parties,  and  the  principal  reason  for  requiring 
notice  to  them  is  to  obviate  the  effect  of  the  rule  of  the  com- 
mon law3  (which  often  operated  harshly),  denying  an  appeal 
where  several  persons  were  jointly  interested  unless  all  joined, 
but  while  this  is  the  principal  object  it  is  not  the  only  one. 
Another,  and  not  much  less  important  object,  is  to  prevent  a 
person  who  will  not  appeal  from  securing  any  benefit  in  the 
event  of  success.  This  object  is  accomplished,  as  far,  prob- 
ably, as  it  is  possible  to  accomplish  it,  by  the  provision  which 
declares,  that,  "  they  shall  not  receive  any  benefit  from  the  ap- 
peal, unless  from  the  necessity  of  the  case."  What  necessity 
will  require  the  award  of  a  benefit  to  them  it  is  difficult  to  con- 
ceive, but  if  there  be  no  necessity  entitling  them  to  a  benefit 
none  can  be  given  them.  If  they  decline  to  join,  the  judgment 
appealed  from  must,  in  the  great  majority  of  cases,  stand  against 
them  in  undiminished  force. 

§  164.   Effect  of  notice  to  one  who  is  a  Party  but  not  a  Co-party— 

A  singular  and  difficult  question  may  arise  where  an  appellant 
gives  notice  to  a  party  to  the  record  assuming  that  he  to 
whom  the  notice  is  given  is  a  co-party,  and  giving  him  notice 
in    that    capacity,  when,  in    reality,    he  is    not.1     We    incline 

1  If  they  do  not  appear  and  decline  to  iams  v.  Bank  of  United  States,  n 
join  they  are  regarded  as  joining;  if  Wheat.  414;  Owings  v.  Kincannon,  7 
they  do  join  they  become  appellants,  Pet.  399;  Wilson  v.  Life  &  Fir<  ln- 
and  will  reap  the  benefit  of  the  appeal  Co..  12  Pet.  140:  O'Dowd  v.  Russell. 
in  the  event  of  success,  but  in  the  event  14  Wall.  40-. 

of  an  unfavorable  judgment  they  may  *  We    are,    of  course,    referring   to   a 

be  compelled  to  bear  the  burden.     Ante,  case  where  the  notice  is  given  to  a  per- 

§§  119,  120,  121,  124.  son    as    a    co-party,    and    is    of   such    a 

2  R.  S.  1SS1,  §  635.  character   as  to  assume  to  bring  him  in 
8  Todd  v.  Daniel,  16   Pet.  521;     Mas-  on   appeal  in  that  capacity  and    not   in 

terson  v.  Herndon,  10  Wall.  416:  Will-     the  capacity  of  an  adverse  party. 


140  APPELLATE  PROCEDURE. 

to  think  that  where  the  party  so  notified  appears,  and,  with- 
out stating  any  reasons  for  his  refusal,  declines  to  join,  he 
will  be  concluded  from  taking  a  subsequent  appeal,  although 
he  may  have  an  independent  right  of  appeal,  but  a  right  in 
some  measure  connected  with  the  controversy  involved  in  the 
appeal.  This  conclusion  is  correct,  as  we  believe,  because  by 
appearing  and  declining  to  join  he  elects  to  assume  the  position 
of  a  co-party.  This  conclusion  would  not  necessarily  result  if 
the  part)-  should  appropriately  place  his  refusal  upon  the  ground 
that  he  was  not  a  co-party,  nor  would  it  result  if  the  appeal  in 
which  the  notice  was  given  involved  an  entirely  and  radically 
dilferent  matter  from  that  embraced  in  an  appeal  subsequently 
taken  by  him.  If  one  who  is  a  party,  but  not  a  co-party,  should 
not  appear  there  would  be  little,  if  any.,  difficulty  presented, 
since  his  inaction  would  be  construed  as  an  acquiescence  in  the 
assumption  that  he  was  a  co-party. 

§  165.  Death  of  Party  before  Appeal — Effect  of— It  is  evident 
that  an  appeal  can  not  be  taken  by  a  dead  person.  The  de- 
cisions go  to  the  extent  of  declaring  that  no  jurisdiction  exists 
in  cases  where  an  appeal  is  attempted  to  be  taken  after  the 
death  of  the  party  whose  name  appears  as  appellant,  and  that  a 
judgment  upon  such  an  appeal  is  void.1  The  general  rule  in- 
dicated is  directly  asserted  in  other  cases,  and  has  for  years 
been  asserted  in  closely  analogous  decisions.2 

§  16G.  Death  of  Party  after  the  Appeal  is  taken — Where  a  party 
dies  after  an  appeal   is  taken  an  essentially  different  rule  pre- 

1  Taylor  v.  Elliott,  52  Ind.  588;  Tay-  ter  v.  Carriger,  3  Yerg.  411;  Ewald  v. 
lor  v.  Elliott,  53  Ind.  441;  Branham  v.  Corbett,  32  Cal.  493;  Coleman  v.  Mc- 
fohnson,  62  Ind.  259.  In  the  case  lasl  Anulty,  16  Mo.  173;  Yaplo  v.  Titus,  41 
cited  it  was  said:  "Hut  the  appeal  to  Pa.  St.  195;  Carr  v.  Townsend,  63  Pa. 
t hi ~.  court   having  been   taken  after  the  St.  202;    Parker  v.  Ilorne^S  Miss.  215; 

;  of  Branh  mi.  ;is  to  him,  is  a  mil-  Young  v.  Pickens,  45  Miss.  553;   New 

lily.     No  act   can  be  done  to  hind  the  Orleans,  etc.,  Co.  v.  Bosworth,  S  La. 

dead,  except  such  as  they  knew  and  had  Ann.  So;   Loring  v.  Folger,  7  Gra>',  505; 

an    opportunity    to    meet    and    answer  McCrcery  V.  Everding,  44  Cal.  2S4,  2S6; 

during  their  lives."     Spalding  V.  Wath-  Sanchez  v.   Roach,    5    Cal.    248;    Jud- 

en,  7  Bush.  659;   Case  v.  Ribelin,  1  J.J.  son   v.  Love,  35  Cal.   463;   Schartzer  t'. 

Marsh.  29.  Love,  40  Cal.  93,  96. 

2  Collins  v.  Mitchell,  5  Fla.  364;   Car- 


PARTIES  141 

vails  from  that  which  governs  where  the  appeal  is  taken  after 
a  party's  death.  The  statute  expressly  and  clearly  provides 
that  the  death  of  any  or  all  of  the  parties  after  an  appeal  is 
taken  shall  not  cause  it  to  abate,  but  the  names  of  the  proper 
persons  ma}r  be  substituted,  by  agreement  or  upon  notice,  and 
when  the  substitution  is  made  the  appeal  proceeds  as  in  ordi- 
nary cases  j1  but  we  suppose,  however,  that  the  statute  was  not 
intended  to  so  operate  as  to  permit  the  prosecution  of  an  appeal 
where  death  terminates  all  right  of  action.  If  the  death  of  any 
or  all  of  the  parties  occurs  after  the  submission  of  a  cause,  judg- 
ment is  required  to  be  rendered  as  of  the  term  at  which  the  sub- 
mission was  made  without  "  any  change  of  parties."2  It  seems 
clear  that,  under  the  provisions  of  the  statute,  in  case  of  the 
death  of  a  party  after  submission  the  judgment  shall  be  ren- 
dered without  any  change  of  parties  ;  the  fact  that  death  has 
occurred  does  not  require  that  new  parties  should  be  made,  al- 
though that  has  been  done  in  many  cases.  But  whether  new 
parties  are  or  are  not  made  would  seem  to  be  immaterial  if  the 
case  is  duly  submitted  before  the  death  of  a  party.3 

§  167.  Death  of  one  of  Several  Appellants — Effect  of— An  appeal 
does  not,  as  a  general  rule,  abate  where  one  of  several  appel- 
lants dies.  In  the  event  of  the  death  of  one  of  several  parties 
the  survivors  may  prosecute  the  appeal.4  It  is  possible  that 
there  may  be  cases,  as,  for  instance,  where  the  only  appellant 
having  an  actual  appealable  interest  dies,  in  which  the  surviv- 

1  R.  S.  iSSi,  §  637.  We  have  elsewhere  ours.    Green  v.  Watkins,  6  Wheat.  260: 

undertaken    to.   show    that    the    statute  Turner  v.  Booker,  2  Dana,  334;    Torry 

does  not  apply  to  cases  where  the  right  v.   Robertson,  24   Miss.  192;  Jenney   :•. 

of  action  which  the  appeal  seeks  to  en-  Jenney,    14    Mass.   231;     Carrollton    v. 

force  dies  with  the  person.    Post,  §  169.  Rhomberg,  7S  Mo.  547;  Blake  v.  Gris- 

2R.  S.  18S1,  §663.  Upon  suggestion  of  wold,   104  N.  Y.  613;   Smith  v.  Kibbe, 

the  party's  death  the  judgment  will  be  31  IIun.390;  Longr.  Hitchcock,  3  Ohio, 

entered   as  of  the   term   at  which    the  274;  Gemmill  V.   Butler,  4  Pa.  St.  252; 

cause  was  submitted.     Hahn  v.  Behr-  Kimbrough  v.  Mitchell,  1  Head.  (Tenn.) 

man,  73  Ind.  120,  126;  Jeffries  v.  Lamb,  539;   Harrison  v.  Mosely,  31  Tex.  60S; 

73  Ind.  202,  207.  Galveston,  etc.,  Co.    V.  Nolan,  53  Tex. 

3  Watpole    v.    Smith,   4  Blackf.   151.  139;   Holloway  v.  Galliac,  49  Cal.  149; 

The  doctrine  of  the  text  is  asserted  by  Black  :•.  Shaw,  20  Cal.  6S. 

many    cases    decided    in    jurisdictions  *  Moses  V.  Wooster,  115  U.  S.  2S5. 
where   the   statute  is   less   liberal   than 


142  AJPPELLA  IT.   PROCEDURE. 

ors  would  have  no  right  to  effectively  prosecute  the  appeal 
against  a  due  and  opportune  objection.  We  are,  of  course, 
here  referring  generally  to  cases  where  the  party  who  dies  is 
not  the  onlv  one  in  whom  the  right  of  appeal  exists.  It  seems 
necessary  to  suggest  this,  since  there  may  be  cases  where  all 
right  dies  with  one  party. 

§  168.  Appeals  by  and  against  Representatives  and  Privies — 
Where  the  cause  of  action  survives,  the  legal  representative  of 
the  decedent  may,  of  course,  prosecute  an  appeal.  There  can 
be  little  or  no  difficulty  in  determining  who  may  prosecute  an 
appeal  where  the  controversy  concerns  only  the  personal  estate, 
but  there  is  some  difficulty  where  the  controversy  affects  real 
property,  or  affects  both  real  and  personal  property.  It  has  been 
held  that  where  both  the  personal  estate  and  the  real  estate  are 
involved,  the  personal  representatives  and  the  heirs  should 
unite  in  the  appeal.1  The  clear  implication  from  the  decision  in 
the  case  referred  to  is  that  where  the  controversy  concerns  land 
alone  only  the  heirs  need  be  parties.2  It  seems  clear,  on  prin- 
ciple, that,  where  the  heirs  are  directly  and  not  remotely  inter- 
ested, they  stand  in  such  privity  to  the  deceased  party  as  entitles 
them  to  appeal,  although  the  controversy  may  not  directly  in- 
volve land.3  Where  heirs  are  directly  interested  in  sustaining  or 
overthrowing  a  judgment  against  the  ancestor,  they  have  an 
appealable  interest,4  and  it  would  seem  to  follow  from  this  that 

1  Benoil  v.  Schneider,  39  Ind.  591,  land.  An  administrator  may  be  ad- 
citing  Slaughter  v.  Foust,  4  Blackf.  379;  mitted  as  a  party  in  the  proper  case. 
John  v.  Hunt,    1    Blackf.  324.     In    the     Branham  v.  Johnson,  62  Ind.  2159. 

first  cited  it  was  said:  "We    con-  3  The   general  principles  asserted   by 

elude  that  when,  as  in  this  case,  there  the  decisions  and  stated  in  preceding  sec - 

is  both  a  personal  judgment  and  a  de-  tions  of  this  chapter  support  this  view. 

cree  of  foreclosure,  the  personal  repre-  Adams  r>.Wood,  8  Cal.  306,  315;  Bates  v. 

sentative  and  the  heir  should  unite  in  Ryberg,  40  Cal.  465;  ///  re  Wright,  49 

the  appeal."     The  case  came  before  the  Cal.  550.     A  wife  having  an    inchoate 

(•miit  a  second  time  and  the  fprmerrul-  interest  is  so  far  a  privy  as  to  be  en- 

ing    was    tacitly  approved.     Benoit    v.  titled  to  appeal.     Kiefer  v.  Winkens,  39 

Schneider,  47  Ind.  13.  How.  Pr.  R.  176. 

2  In  Vail  v.  Lindsay,  67  Ind.  528,  it  4  Gilchrist  v.  Rea,  9  Paige,  66;  In 
is  held  thai  an  administrator  can  not  re  Thompson,  11  Paige,  453;  Jaun- 
prosecute  an  appeal  from  a  judgment  cey  v.  Rutherford,  9  Paige,  273;  Wilcox 
rendered  in  a  case  involving  the  title  to  v.  Smith,  26  Barb.  316 


PARTIES.  I40 

they  are  necessary  parties  on  appeal  because  of  privity  of  re- 
lation and  estate.  We  suppose,  however,  that  the  interest 
must  be  more  direct  than  that  which  heirs  have  in  matters 
growing  out  of  ordinary  claims  against  the  estate  of  the  de- 
ceased ancestor.  Where  the  proceeding  is  one  to  subject  land 
to  sale  for  the  payment  of  debts  there  can,  of  course,  be  no 
doubt  that  the  heirs  are  necessary  parties  on  appeal.1 

§  169.  Abatement  by  Death — The  principle  that  appellate  juris- 
diction is  one  of  review  requires  the  conclusion  that  where  the 
cause  of  action  does  not  survive,  the  appeal  will  abate  in  cases 
where  the  sole  possessor  of  the  cause  of  action  who  prosecutes 
the  appeal  for  its  enforcement  dies  pending  the  appeal.  It 
would  be  useless  for  the  appellate  tribunal  to  reverse  a  judg- 
ment denying  a  right  of  recovery  where,  if  the  case  should  be 
remanded,  the  trial  court  could  do  nothing  more  than  obey  the 
positive  law,  and  this  obedience  would  inevitably  result  in  a 
dismissal  of  the  action.  We  suppose  that  an  appellate  tribunal 
will  not  proceed  when  it  is  made  evident  that  any  decision  ren- 
dered would  be  barren  and  fruitless.  Whether  death  will  or 
will  not  abate  an  appeal  depends,  therefore,  upon  whether  the 
right  of    action   survives.2     Broad   and  comprehensive  as   the 

1  Patterson  i'.  Hamilton,  26  Hun.  665;  161,   7    S.    E.    Rep.    58;    Reynolds    v. 

Brown    v.  Evans,  34   Barb.   594.      See,  Hennessy    (R.    I.),    20    Atl.  Rep.  307; 

generally,  Gilman  v.  Gilman,  35  Barb.  Baker  v.  Braslin  (R.  I.),    iS   Atl.    Rep. 

591;   Underhill  v.  Dennis,  9  Paige,  202;  1039.    Judge  Buskirk  says:  "Where  a 

Kellinger  v.  Roe,  7  Paige,  362.  party  to  a  personal  action,  which  sur- 

3  Our  court  adopts,  substantially,  the  vives,  dies  after  judgment  and  before 
equity  rule,  and  that  rule  is  more  the  taking  of  an  appeal,  the  appeal  may 
liberal  than  that  of  the  common  law.  be  taken  by  the  personal  representative 
Our  code  does,  indeed,  enlarge  the  of  the  decedent  if  he  was  the  aggrieved 
equity  rule.  There  are,  however,  ac-  party,  or  it  may  be  taken  by  the  ag- 
tions  that  do  not  survive,  but  die  with  grieved  party  by  service  of  personal 
the  person.  Indianapolis,  etc.,  Co.  v.  notice  upon  the  representative  of  the 
Stout,  53  Ind.  143;  Stout  v.  Indianapo-  party  in  whose  favor  the  judgment  was 
lis,  etc., Co.,  41  Ind.  149;  Boor  t\  Lowrey,  rendered."  Buskirk"s  Pr.  58.  The 
103  Ind.  46S;  Hess  v.  Lowrey,  122  Ind.  learned  author  also  says  that.  '■After  a 
225,  23  X.  E.  Rep.  156;  Clarke  v.  Mat-  careful  consideration,  we  have  reached 
thewson,  12  Pet.  164;  Evans  v.  Cleve-  the  conclusion  that  the  legislature  in- 
land, 72  N.  Y.  4S6,  4SS;  O'Reilly  v.  tended  to  provide  that  the  death  of  any 
New  York,  etc.,  Co.  (R.  I.),  17  Atl.  or  all  of  the  parties  to  a  judgment,  alter 
Rep.  906;  All  v.  Barnwell,  29  So.  Car.  an  appeal  had   been    taken    and   before 


144 


APPELLATE  PROCHPl'  R  E. 


language  of  the  statute  is,  we,  nevertheless,  are  of  the  opinion 
that  it  was  not  intended  to  give  a  right  of  appeal  where  the 
right  of  action,  which  it  is  the  object  of  the  appeal  to  make 
effective,  terminates,  by  positive  law.  with  the  death  of  the 
person  who  asks  that  his  claim  be  established  by  the  judgment 
on  appeal.  In  view  of  the  long  and  well  settled  principles  of 
law  and  of  the  statutory  provisions  upon  the  subject,  our  con- 
clusion is,  that  a  right  to  prosecute  an  appeal  ceases  with  the 
death  of  the  person  with  whom  the  right  of  action  dies.  We 
do  not  believe  that  the  isolated  provision  was  intended  to  repeal 
other  statutory  provisions  or  abrogate  a  firmly  established  rule 
of  law.1 


submission  of  the  cause  to  the  Supreme 
Court,  should  not  cause  the  appeal  to 
abate,  but  that  upon  the  proper  names 
being  substituted,  upon  consent  or  upon 
notice,  the  cause  might  proceed."  Ibid. 
The  language  employed  by  the  learned 
author  is  broad  enough  to  convey  the 
meaning  that  the  appeal  would  not 
abate  in  the  case  suggested  in  our  text, 
but  in  view  of  the  statement  first  quoted, 


we  think  that  was  not  his  meaning.  We 
suppose  that  in  the  statement  last 
quoted  he  intended  to  be  understood,  as 
he  well  may  be,  as  speaking  of  a  differ- 
ent subject  than  the  right  to  prosecute 
an  appeal  where  the  right  of  action 
dies  with  the  person. 

1  Downer  v.  Howard,  44 Wis.  82;  Bar- 
ney v.  Barney,  14  Iowa,  1S9. 


CHAPTER  VIII. 


PROCESS. 


4  170.   Notice — Object  of — Sufficiency. 

171.  Test  of  sufficiency. 

172.  Written  notice  required. 

173.  Notice  as  essential  to  jurisdic- 

tion. 

174.  Time   where   there  is  no  fixed 

rule  must  be  reasonable. 

175.  Notice  not  givenin  time — When 

ineffective — Waiver. 

176.  Upon    whom    process    may    be 

served. 

177.  Service  on  the  attorney  of  record. 


§  17S.    Service  on  one  of  several  attor- 
neys. 

179.  Proof  of  service. 

180.  Filing   of  notice   and   proof  of 

service. 

181.  Service  of  notice  on  co-parties. 

182.  Objections  to  process. 

183.  Constructive  notice. 

154.  Proof  of  publication . 

155.  Amendment  of  the  proof  of  no- 

tice. 


§  170.  Notice — Object  of — Sufficiency — The  object  of  original 
legal  process,1  whether  it  be  in  the  form  of  a  notice  or  in  the 
form  of  a  writ  or  summons,  is  to  convey  information  of  the  gen- 
eral nature  of  the  proceeding  and  of  the  time  and  place  of  the 
hearing  or  trial.  In  modern  procedure  the  original  process 
does  not  serve  the  same  purpose  that  a  formal  writ  did  under 
the  old  common  law  system,  and  there  is  no  necessity  for  its 
being  so  full  and  complete  under  the  modern  system  as  it  was 
required  to  be  by  the  rules  of  the  old  system.  There  is,  indeed, 
less  reason  for  requiring  strict  accuracy  in  appellate  proceed- 
ings than  for  requiring  it  in  proceedings  in  courts  of  original 
jurisdiction.  But,  as  rules  are  required  for  the  orderly  and 
systematic  conduct  of  the  business  of  judicial  tribunals,  it  is 
essential  that  notices  and  writs  should  be  framed  with  regard 
to  the  provisions  of  the  statute  or  the  general  principles  of  pro- 

1  We  here  employ  the  term   "legal  1  Idaho,  206,  210;    City  of  Philadelphia 

process"  in  the  sense  of  the  means  of  v. Campbell,  n  Phila.  162,  164;  Fluester 

bringing  a  party   into   court  or  before  V .  McClelland,  3  C.  B.  (N.  S.)  357,  359; 

the  court,  and  this  meaning  is  warranted  Gilmer  v.  Bird,  15  Fla.  410,  421.     The 

f\v   the    judicial  definitions    that    have  term  as  used  includes  notices  and  formal 

been  given  the  term.     People  v.  Nash,  writs. 


10 


(145) 


14»» 


APPELLATE   PROCEDURE. 


cedure.  It  will  not  do  to  frame  notices  or  writs  in  entire  dis- 
regard of  legal  rules,  although  the  law  is  quite  liberal  respect- 
ing the  form  and  service  of  notices  and  writs. 

§  171.  Test  of  sufficiency — The  modern  rule  by  which  a  writ 
or  notice  is  tested  is  liberal.1  If  it  is  sufficient  to  inform  the 
party  of  the  general  nature  of  the  case  to  which  he  is  required 
to  appear,  and  of  the  time  and  place  of  the  hearing,  it  will 
ordinarily  be  deemed  sufficient.2  But,  while  the  rule  is  liberal, 
it  does  not  go  to  the  extent  of  upholding  a  notice  wholly  un- 
authorized by  law.3  If  the  statute  explicitly  requires  that  a 
notice  shall  be  in  a  designated  form,  it  must  conform  to  the  re- 
quirements of  the  statute,4  but,  as  a  general  rule,  it  is  sufficient 
if  the  writ  or  notice  is  substantially  such  as  the  law  requires.0 
It  is  not,  however,  to  be  assumed  that  because  the  rule  as  to  the 
form  and  contents  of  a  notice  or  writ  is  liberal  that  a  notice  or 
summons  is  unimportant,  for  the  reverse  is  true.  A  notice  or 
summons  is  important  inasmuch  as  it  is  essential  to  give  juris- 
diction of  the  person.     If  the  notice  or  writ  is  so  utterly  defect- 


1  Wilson  v.  Allen,  3  How.  Pr.  R. 
369;  People  v .  Tarbell,  17  How.  Pr.  R. 
120;  Matter  of  Gales,  26  How.  Pr.  R. 
179. 

2  Pamor  v.  Rombauer,  41  Kan.  295,  21 
Pac.  Rep.  7S4;  Shirley  v.  Birch,  16  Ore. 
1,  iS  Pac.  Rep.  344;  Freeman  v.  Paul, 
105  Ind.  451;  Quail  v.  Abbett,  10:  [nd. 
233;   Cicero  Tp.  v.  Shirk,  122    Ind.  572. 

8  Day  v.  Callow,  39  Cal.  593;  Gut- 
brecht  v.  Prospect  Park,  etc.,  Co.,  28 
Hun.  497;  Burroughs  v.  Norton,  4S 
How.  Pr.  R.  132;  McAllep  v.  The 
Latona,  3  Wrash.  Ty.  332,  19  Pac.  Rep. 

'31- 

'  Reese  v.  Smyth.  95  X.  Y .  645; 
Cameron  v.  Equitable,  etc.,  Co.,  13 
Jones  &  Sp.  62S;  Guarantee,  etc.,  Co. 
v.  Buddinton,  23  Fla.  514;  Weiser  v. 
Day,  77  Iowa,  25,  41  N.  W.  Rep.  476; 
Allen  v.  Strickland,  100  N.  C.  225,  (•> 
S.  E.  Rep.  7S0. 

5  Bollinger    v.    Manning     (Cal.).     21 


Pac.  Rep.  375;  Shepherd  v.  Brown,  30 
W.  Va.  13,  3  S.  E.  Rep.  1S6.  The  rule 
as  to  writs  and  notices  in  the  court  of 
original  jurisdiction  is  very  liberal,  and 
as  there  is  no  reason  why  it  should  be 
more  strict  on  appeal,  the  decisions 
upon  the  subject  of  process  in  the  trial 
court  are  relevant  to  appellate  pro- 
cedure. The  rule  is  that  formal  defects 
will  be  disregarded.  Stout  v.  Woods, 
79  Ind.  10S;  Robinson  v.  Brown,  74 
Ind.  365;  Nave  v.  First  Nat.  Bank,  87 
Ind.  204;  Johnson  v.  Lynch,  87  Ind. 
326;  Krug  v.  Davis,  S5  Ind.  309;  State 
v.  Davis,  73  Ind.  359;  Williams  v. 
Hitzie,  83  Ind.  303;  Freeman  v.  Paul, 
105  Ind.  451.  If  the  notice  brings  a 
party  into  court  and  affords  him  an  op- 
portunity to  defend,  it  is,  as  a  general 
rule,  sufficient.  Nysewander  v.  Low- 
man,  124  Ind.  584;  Hawkins  v.  Mc- 
Dougall,  126  Ind.  539,  541. 


PROCESS 


147 


ive  as  to  be  destitute  of  force,  it  will  not  give  jurisdiction.1  But 
it  is  to  be  borne  in  mind  that  there  is  a  marked  and  material 
difference  between  direct  and  collateral  attacks,  for  where  there 
is  some  notice,  although  defective,  and  it  has  been  expressly  or 
impliedly  adjudged  sufficient,  it  will  repel  a  collateral  attack.2 
Where  there  is  some  notice,  the  objection  to  its  sufficiency  must 
be  specially  made,  unless  it  is  so  defective  as  to  be  absolutely 
ineffective. 

§  172.  Written  Notice  required — Written  notice  is  required  ; 
verbal  notice  can  not  serve  the  purpose  of  bringing  a  party  into 
court.3  Actual  notice  is  not  sufficient,  unless  it  is  substantially 
such  as  the  law  requires.1  An  essential  requisite  of  the  notice 
is  that  it  should  state  the  time  and  place  of  the  hearing,5  but  in 
appellate  procedure,  the  designation  of  the  case  appealed  and 
the  court  to  which  it  is  appealed  is  generally  sufficient.  Where, 
however,  a  motion  is  special,  it  is  otherwise  ;  in  such  a  case, 
time  and  place  must  be  designated  with  reasonable  certainty. 
Notice,  when  required  to  bring  a  party  into  court,  becomes  part 
of  the  record  in  all  cases  where  it  is  essential  and  questions  arise 
respecting  its  sufficiency. 6 


1  Brooks  v.  Allen,  62  Ind.  401.  See 
Faulkner  v.  Guild,  10  Wis.  563;  Pea- 
body  v.  Phelps,  9  Cal.  213. 

2  Muncey  v.  Yoest,  74  Ind.  409;  Mc- 
Alpine  v.  Sweetser,  76  Ind.  78;  Hume 
v.  Conduit,  76  Ind.  59S;  Oppenheim  v. 
Pittsburgh,  etc.,  Co.,  815  Ind.  471; 
Kleyla  v.  Haskett,  112  Ind.  515;  Mont- 
gomery -'■  Wasem,  116  Ind.  343;  Lake 
Shore,  etc.,  Co.  v.  Cincinnati,  etc.,  Co., 
116  Ind.  578;  Hackett  v.  State,  113  Ind. 
532;  Bass  v.  City  of  Ft.  Wayne, 
i2i  Ind.  3S9;  Essig  v.  Lower,  120 
Ind.  239;  Field  v.  Malone,  102  Ind.  251 ; 
Otis  v.  De  Boer,  116  Ind.  531;  Adams 
v.  Harrington,  114  Ind.  66;  Jackson  v. 
State,  104  Ind.  516.  See,  also,  Bonsall 
v.  (sett,  14  Iowa,  309;  Dutton  v.  I  lob- 
son,  7  Kan.  196;  Shea  v.  Quintin,  30 
Iowa,  58;  Christian  v.  O'Neal,  46 
Miss.  669;  Cole  v.  Butler,  1.3  Me.  401; 
Hendrick  v.  Whittemore,  [05  Mass.  23; 


Morrow  v.  Weed,  4  Iowa,  77;  Ballinger 
v.  Tarbell,  16  Iowa,  491;  People  v. 
Hagar,  52  Cal.  171;  Sheldon  v.  Wright, 
5  N.  Y.  497;  Delaney  v.  Gault,  30  Pa. 
St.  63;  Borden  v.  State,  6  Eng.  (Ark.) 
519;  Paine  t'.  Mooreland,  15  Ohio,  435. 

3  Tidd's  Pr.  109.  Our  statute  requires 
that  the  notice  shall  be  in  writing.  R. 
S.  1SS1,  §  482. 

4  Peabody  v.  Phelps,  9  Cal.  213;  Karr 
v.  Karr,  19  N.  J.  Eq.  427;  Jordan  v. 
Bowman.  28  Mo.  App.  608. 

5  Kitsmiller  v.  Kitchen,  24  Iowa,  163. 

6  The  fact  that  notice  may  become 
part  of  the  record  is  evidence  that  it 
should  be  in  writing,  for  oral  state 
ments,  unless  made  in  open  court  and 
appropriately  entered  of  record,  or  1 
bodied  in  a  bill  of  exceptions,  are  not 
part  of  the  record.  Notice  may  not.  in 
strictness,  always  be  an  essential  part 
of  the  record,  but  however  this  may  be, 


14S  APPELLATE  PROCEDURE. 

§  173.  Notice  as  essential  to  Jurisdiction — Notice  is,  it  is  true, 
essential  to  jurisdiction  of  the  person,1  but  the  legislature  may 
prescribe  the  form  of  notice  and  the  manner  of  its  service.2  It 
is  competent  for  the  legislature  to  provide  for  notice  by  publi- 
cation, and  when  notice  is  given  by  publication  as  the  statute 
requires  it  is  effective/''  Where,  however,  a  party  is  in  court 
he  is  bound  to  be  informed  of  what  occurs  there  in  due  course 
without  special  notice.  It  is  upon  this  principle  that  a  statute 
providing  for  an  appeal  within  a  limited  time,  or  in  term,  may 
be  upheld,  but  it  is  obvious  that  to  make  such  a  statutory  right 
available  all  the  essential  acts  required  by  the  statute  must  be 
performed  in  substantial  conformity  to  its  commands. 

§  174.  Time  where  there  is  no  fixed  rule  must  be  Reasonable — 

Where  a  notice  of  appeal  is  required  and  no  time  is  fixed  by 
the  statute  or  by  the  rules  of  the  court,  reference  is  to  be  had  to 
the  general  rules  which  govern  analogous  cases.  The  object 
of  systematic  procedure  is  to  bring  the  rules  of  practice  into 
harmony  and  prevent  diversity.  The  rules  of  the  court  fix  the 
time  for  giving  notice  to  appellees  in  cases  appealed  under  the 
act  of  1885,  and  they  require  ten  days'  personal  service  in  cases 
where  personal  service  is  proper  and  publication  for  a  period 
of  thirty  days  before  submission.1  Notice  of  appeal  under  the 
statute  of  1881  was  given  by  ten  days'  personal  service,  and  in 
case  of  non-residents  by  publication  for  three  weeks  thirty  days 

it    must    be    in    such    form  that    it  can  Atl.  Rep.  556.    Some  of  the  courts  hold 

always  be  made  part  of  the  record  when  that  a  judgment  may  be  valid  without 

necessary.     It  is  to  be  regretted  that  in  any   notice.     Flint   River,  etc.,   Co.  v. 

some   cases  the  rule  requiring  written  Foster,   5  Ga.   194,  48   Am.    Dec.  248. 

no! ice     has     been     relaxed,    but    as    to  This   can    not    be    sound   doctrine,   for 

notice   constituting   legal    process,   the  without  notice  there  can  not  be  "  due 

rule  has  not  been  broken  upon.  process  of  law."     Cooley's  Const.  Lim. 

1  Windsor  v.  McVeigh,  93  U.  S.  274;  356;    Hagar   v.    Reclamation    District. 

Palmer,  74   N.   Y.    183,    190;  1 1 1  U.  S.  701,707;  Ex  fart,  Wall,  107  U. 

Kuntz  V.  Sumption,  1 17  Ind.  1.  In  Wiley  S.  265;  Campbell   v.  Dwiggins,  83  Ind. 

o.Neal,  24 Neb.  141,37  N.W.  Rep. 926,  it  473;  Garvin  v.  Daussman,  114  Ind.  429; 

was  held  that  where  there  was  no  notice  Seifert  v.  Brooks,  34  Wis.  443;   White- 

and  no  appearance  the  Supreme  Court  fordTp.t'.  Probate  Judge,  53  Mich.  130. 
had  no  jurisdiction  of  the  appeal.  s  Essig  v.  Lower,  120  Ind.  239;  Quarl 

2  Thotrvenin  v.  Rodiguez,  24Tex.46S;  v.  Abbett,  102  Ind.  233. 
Hurlbut  v.  Thomas,  55  Conn.  1S1,  10         4  Rule  XVII. 


PROCESS.  149 

before  the  first  day  of  the  term,1  but  the  act  of  1S85  has,  under 
the  rules  of  the  court,  practically  supplanted  the  provisions  of 
the  former  statute.2 

§  175.   Notice  not  given  in  Time — When  ineffective — Waiver — 

Time  is  an  essential  element  in  the  service  of  process.  A  no- 
tice not  given  in  season  is  bad  when  directly  and  properly 
assailed.  But  where  there  is  an  appearance  and  no  objection, 
defects  are  waived.  It  is  not  essential  to  constitute  a  waiver 
that  there  should  be  a  formal  or  regular  appearance,  for  waiver 
of  notice  may  be  implied  from  an  indirect  or  informal  appear- 
ance, as,  for  instance,  by  filing  a  brief  upon  the  merits.3 

§  176.  Upon  whom  Process  may  be  served — Personal  service 
may  be  made  upon  the  party  or  upon  his  attorney  of  record. 
W£here  the  notice  is  given  below  notice  must  also  be  served 
upon  the  clerk  of  the  trial  court,  but  where  the  notice  issues 
from  the  appellate  tribunal  it  is  sufficient  to  serve  it  upon  the 
adverse  party  or  his  attorney.4  If  notice  below  is  given  the 
transcript  must  be  filed  in  the  office  of  the  clerk  of  the  Supreme 
Court  within  sixty  days  from  the  time  of  taking  such  appeal  ; 
if  not  so  filed,  the  appeal  will  fail.5  But  the  failure  of  an  appeal 
taken  upon  notice  given  below  will  not  preclude  the  appellant 
from  perfecting  an  appeal  by  issuing  and  serving  notice  as  in 
cases  where  no  notice  is  given  below."     It  is,  however,  to  be 

1  R.S.,  §§651,652.  As  to  length  of  time         3  Schmidt  ^.Wright,  88  Ind.  56;  Rob- 
required,  see  Hill    :•.   Pressley,  i/>  Ind.     crtson  v.  O'Riley,   14  Col.  441.  i\ 
447;  Horn:'.  Indianapolis  Nat.  Bank,     Rep.  560.    See,  generally,  State  v. 

125  Ind.  3S1.  tabough,  66  Ind.  223;    Clark  v.  Conti- 

2  Elliott's  Supp.,  §  28.  Theact  of  1SS5  nental,  etc.,  Co.,  57  Ind.  135;  Summers 
is  so  vague  and  indefinite  as  to  be  in-  v.  State,  51  Ind.  201;  Bates  v.  Scott,  26 
capable  of  practical  enforcement  with-  Mo.   App.  428;    Benson  v.  Carrii 

Out  the  aid  of  the  rules  adopted  by  the  So.  Car.  119,  5  S.  E.  Rep.  272;    Wilson 
court.   These  rules  have  given  it  a  prac-  v.  Zeigler,  44  Tex.  657. 
tical  effect,    and    under   them   the  cases  *  R.   S.,   §  640.      We    are,    of   course, 
are   submitted.     These  rules    are  valid  speaking  of  appeals  after  term,  for  term 
upon  the  general  principle  that  courts  appeals,  as  we   have   seen,  Jo   not   re- 
have  power  to  make  rules  for  the  con-  quire  notice, 
duct  of  business,  and  the  practice  has  5  Rule  II. 
been  so  uniform  and  so  long  continued  6  Rule  II. 
that  the  rules  may  well  be  considered 
as  the  law. 


150  APPELLATE   PROCEDl  RE. 

kept  in  mind  that  the  appeal  must,  in  an)-  event,  be  perfected 
within  the  year,  since  that  is  the  utmost  limit  within  which  an 
appeal  can  ordinarily  be  taken.  An  appeal  attempted  to  be 
taken  under  the  law  regulating  appeals  in  term  may  become  a 
valid  appeal  upon  notice  although  it  may  be  ineffective  as  a 
term  appeal,  but  in  order  that  it  may  become  effective  as  an 
appeal  after  term,  notice  must  be  issued  and  served  within  the 
year  allowed  for  perfecting  appeals.1  It  is  essential  in  cases  where 
notice  is  issued  from  the  appellate  tribunal  that  the  transcript 
should  be  filed  before  the  notice  issues,  and  that  errors  should 
be  assigned.  Process  issues  against  the  parties  named  in  the 
assignment  of  errors2  and  it  is  necessary  that  they  should  be 
properly  named  and  designated.3 

§  177.  Service  on  the  Attorney  of  Record — Notice  ma}  be 
served  upon  the  attorney  of  record  in  the  trial  court,4  although 
his  employment  as  attorney  may  not  continue  beyond  the  trial 
and  judgment.5  It  is  possible  there  may  be  cases  where  service 
upon  the  attorney  will  be  ineffective,6  as,  for  instance,  where 
the  appellee  has  notice  of  the  discharge  of  the  attorney  ;  but, 
however  this  may  be,  it  is  clear  that,  presumptively  at  least,  the 
cmplovment  continues  for  the  purpose  of  receiving  notice  of 

1  Rule  1;  Holloran  v.  Midland  Rail-  record,  personal  service  must  be  made 
v.:i\  I                    E.  Rep.  549.  upon  him,  or  upon  his  client,  for  service 

2  Rule  VI.  oy  publication  is  only  allowable  where 
1  Braden  v.  Leibenguth,  12611^.336;  there  is  no  attorney  of  record  and  the 

Sparklin  v.  Wardens, etc.,  119  End.  535;  adverse  party  is  a  non-resident.    John- 
Hawkins  v.  McDougall,  126   Ind.  544;  son  v.  Miller,  43  Ind.  29. 
Brookover  v.  Forst,  31   Ind.  255.     The  6  In  Richardson  v.  Pate,  93  Ind.  423, 
urn  in  Prici          I    ike r,  41    Ind.  570,  430,  it  was  said:      "  Service   on   the   at- 
lified  1\   later  decisions  and  is  in-  torney    who   appeared  of  record  is  as 
deed   in  conflict  with   the  earlier  cases,  good  as  upon  the  party  himself,  in  the 
["he  Assignment  of  Errors,  "Chap-  absence  of  evidence  thai  the  party  pro- 
ter  XVI.  posing  to  appeal  bad  notice  of  the  at- 
1  Hurlbut  v.  Hurlbut,    12    Ind.    346;  torney's  discharge.     The  fact  that  the 
Kinney  v.  Hickox,  j|  Neb.   167,  38  N.  attorney  accepted  notice  as  but  for  one 
W.  Rep.  Sir,;    Beardsley   v.  Frame,  73  of  the  parties  can  make  no  difference; 
Cal.  034,   15  Pac.  Re]).  310;   Shirley  v.  the  service  of  notice  on  him  is  the  ma- 
on,  1,  iS  Pac.  Rep.  344.  terial  point,  and,  when  made,  is  good  as 
6  Taking    the   provisions    of   sections  against  all  of  the    appellees  for  whom 
ud  051  of  the  code  together,  it  is  he  appeared  of  record  in  the  trial  court." 
clear  that  where  there  is  an  attorney  of 


PROCESS.  151 

the  appeal.  We  are,  indeed,  inclined  to  doubt  whether  the 
appellee  can  in  any  case  defeat  the  appellant  by  discharging 
the  attorney,  for  the  law  provides  that  notice  to  the  attorney  of 
record  shall  be  sufficient,  and  it  is  difficult  to  conceive  any  ten- 
able ground  upon  which  it  can  be  held  that  the  appellant  can, 
in  any  event,  be  required  to  look  beyond  the  record  or  to  do 
more  than  the  law  requires.  To  permit  the  appellee,  especially 
where  he  is  a  non-resident,  to  defeat  an  appeal  by  showing  a 
discharge  of  the  attorney  and  notice  to  the  appellant,  would 
often  lead  to  injustice  and  would  in  many  instances  raise  un- 
necessary and  perplexing  questions  of  fact.  Notwithstanding 
the  intimation  in  the  opinion  from  which  we  have  quoted  we 
are  inclined  to  believe  that  service  upon  the  attorney  of  record 
is  all  that  is  required,  and  that  no  question  as  to  notice  of  his 
discharge  can  be  presented.  We  believe,  however,  that  where 
the  appellee  has  in  good  faith  discharged  his  attorney  the 
court,  upon  a  timely  and  proper  showing,  would  grant  relief  by 
setting  aside  a  submission  and  extending  the  time  for  filing  a 
brief,  or  the  like,  but  we  do  not  believe  that  there  could  be  any 
order  rightfully  made  which  would  so  operate  as  to  defeat  the 
appeal. 

£  178.  Service  on  one  of  several  Attorneys — Where  a  party  is 
represented  by  two  or  more  attorneys,  service  upon  one  of  them 
is  sufficient.1  If,  however,  there  are  parties  with  diverse  inter- 
ests having  different  attorneys,  although  nominally  on  the 
same  side  of  the  case,  service  of  notice  upon  an  attorney  repre- 
senting one  of  the  parties  would  not  be  effective  as  against  the 
others.  This  is  so  for  the  reason  that  service  upon  the  attorney 
is  effective  only  where  he  is  of  record  the  representative  of  the 
litigant.2  If  one  attorney  represents  parties  united  in  interest, 
then  service  upon  him  will  be  sufficient,  no  matter  how  numer- 
ous the  parties  may  be,  for  in  such  a  case  the  material  purpose 
of  the  statute  is  given  effect.     Where  there  are  several  parties 

^omstock  v.  Cole,  2S  Neb.  470,44  E.    Rep.   920.     See,   also,  Goodwin    v. 

X.  W.  Rep.  4S7:    Cockrill  v.  Hall,  76  Hilliard,  76  Iowa,  555,  41   N.  W.  Rep. 

Cal.  192.  18  Pac.  Rep.  31S.  312. 

2  Anderson  v.  Fau,  79  Ga.  55S,  4    S. 


152  APPELLATE  PROCEDURE. 

with  diverse  interests  and  different  attorneys,  the  notices  of  ap- 
peal should  be  appropriately  framed  and  severally  served.1 

§  179.  Proof  of  Service — Service  of  notice  of  an  appeal  may 
be  proved  in  various  modes.  Acceptance  of  service  by  the 
party  himself,  or  by  his  attorney  of  record,  is  valid  proof  of  due 
service  of  the  notice.  Service  may  be  proved  by  the  return  of 
an  officer  duly  authorized  to  serve  legal  process,  or  it  may  be 
proved  by  affidavit,  when  not  made  by  an  officer.2  The  accept- 
ance of  service,  as  well  as  the  proof  of  service,  should,  in  strict- 
ness, state  the  time  and  place  of  service,  for  so  the  statute  re- 
quires.3 But  the  place  of  service  is,  in  general,  not  required  to 
be  specifically  set  forth,  although  it  is  otherwise  as  to  time.  We 
suppose  that,  under  the  general  rule,  defects  and  irregularities 
which  do  not  mislead  or  prejudice  the  party  will  be  disregarded. 
The  failure  to  state  the  place  of  service  would  not  vitiate  the 
notice  or  process.  The  provision  of  the  code  requiring  the  time 
and  place  to  be  stated,  is  to  be  taken  in  connection  with  other 
statutory  provisions,  and  with  settled  principles,  and  when  thus 
taken  it  is  clear  that  it  can  not  be  allowed  to  defeat  the  service 
where  the  party  served  has  not  been  misled  or  prejudiced.  It 
has  long  been  the  practice  to  accept  as  sufficient  proof  of  service 
a  verified  statement  or  an  official  return  which  does  not  desig- 
nate the  place,  and  this  practice  has  given  a  practical  exposition 
to  the  statute  which  can  not  be  rightfully  disregarded.  Pos- 
sibly, cases  may  arise  where  it  is  important  that  the  place  of 
service  should  be  stated,  as,  for  instance,  in  cases  where  the 
party  is  a  non-resident,  and  so  appears  of  record,  but  such 
cases  are  very  rare.  Presumptively  an  acknowledgment  of 
service  implies  that  it  was  made  where  the  papers  show  the 
venue  to  be  laid,  and  in  cases  where  the  service  is  by  an  officer 
the  presumption  is  that  service  was  made  within  his  bailiwick. 

I  180.   Filing  of  Notice  and  Proof  of  Service — Notices  must  be 
properly  filed  and  so  must  the  proof  of  service.     They  are  mat- 
center  v.  DeBernal,  3S   Cal.  637:        'Rule  XVII;    R.  S.,  §  481,   Subdiv. 
Thompson    v.    Ellsworth,    1  Barb.  Ch.     1.  2. 

624,  627;  Cotes  v.  Carroll,  28  How.  Pr.         3  R.  S.,  §  4S1,  Subdiv.  4. 
436. 


PROCESS.  153 

ters  of  record,  and,  while  it  is  not  necessary  that  they  should 
always  be  copied  into  the  order  book  or  entry  docket,  they 
must  be  duly  placed  among  the  files  in  the  cause.  It  seems 
from  the  decisions  elsewhere,  and  from  the  rules  which  prevail 
in  analogous  cases,  that  where  notice  is  issued  and  served  be- 
low, the  notice  and  proof  of  service  should,  in  strictness,  appear 
in  the  transcript.1  It  is  probable,  however,  that  the  liberal  rule 
which  prevails  in  this  state  would  sustain  an  appeal  if  the  ap- 
pellant should  file  with  the  transcript  the  notice  of  appeal  and 
proof  of  service,  but  the  safe  method,  and  the  proper  one,  is  to 
cause  the  notice  and  proof  of  service  to  be  embodied  in  the 
transcript  certified  to  the  appellate  tribunal,  in  all  cases  where 
the  appeal  is  taken  by  notice  given  below.  It  is  in  general 
true,  that  jurisdiction  in  cases  of  appeal  must  affirmatively  ap- 
pear from  the  record.  This  is  illustrated  by  the  numerous  cases 
which  hold  that  where  the  order  for  appeal  must  be  made  in 
the  trial  court  the  record  must  contain  the  order.  It  is  also  il- 
lustrated by  our  cases  which  assert  that  in  appeals  from  inter- 
locutory orders  the  record  must  affirmatively  show  that  the  steps 
required  by  statute  in  such  cases  were  duly  and  timely  taken. 

§  181.  Service  of  Notice  on  Co-parties — The  mode  of  making 
proof  of  service  upon  co-parties  is  not  specifically  prescribed, 
but  under  the  rule  that  like  principles  will  be  extended  to  like 
cases, — for  "like  reason  doth  make  like  law," — there  can  be 
little  doubt  that  service  may  be  made  and  proved  as  in  cases 
where  the  parties  are  adverse.  The  practice  has  been  to  give 
notice  substantially  as  in  cases  of  adverse  parties,  and  this  long 
continued  practice  may  well  be  deemed  to  establish  the  law. 
As  to  the  time  and  all  like  matters  the  rule  as  to  notifying  ad- 
verse parties  may  be  safely  accepted  as  the  guide.  There 
seems  to  be  no  provision  for  notifying  co-parties  below,  but  we 
can  see  no  reason  why,  upon  general  principles,  all  may  not 
there  be  served  with  process.  Any  other  conclusion  would 
produce  discord  and  confusion,  since  it  would  result  in  an  ap- 
peal as  to  some  of  the  parties  being  taken  in  one  mode,  and  as 
to  other  parties  in  another  and  different  mode. 

1  Whipley  f.  Mills, 9  Cal.  641;  Franklin  v.  Reiner,  S  Cal.  340;     Hildreth  v. 
Gwindon,  10  Cal.  490. 


154 


APPELLATE  PROCEDURE. 


§  182.  Objections  to  Process — Objections  to  process  must  be 
seasonably  and  specifically  made  or  they  will  be  deemed 
waived.  A  general  appearance,  a  joinder  in  error,  an  agree- 
ment to  submit,  or  the  filing  of  a  general  brief  will  waive  ob- 
jections. In  short,  any  act  constituting  an  appearance  will 
preclude  a  party  from  subsequently  challenging  the  sufficiency 
of  the  notice.1 

§  183.  Constructive  Notice — The  usual  mode  of  serving  process 
is  that  denominated  personal  service,  and  where  no  provision  is 
made  by  law  for  a  different  mode  personal  service  is  required. 
Where  notice  by  publication  is  the  only  notice  that  can  be  given 
the  provisions  of  the  statute  upon  the  subject  must  be  substan- 
tially followed."  Our  statute  requires  an  affidavit  that  the  party 
is  not  a  resident  of  the  state  and  that  a  notice  can  not  be  served 
upon  the  attorney  of  record  below.'5  The  proper  practice  is  to 
file  the  affidavit  in  the  appellate  tribunal  and  there  obtain  an 
order  for  the  publication.  If  the  affidavit  or  notice  is  not  so 
defective  as  to  be  an  absolute  nullitv,  the  order  of  the  court 
will  be  effective  although  the  affidavit  or  notice  may  not  com- 
ply with  the  statute,  but  this  rule  will  not  prevail  where  ob- 
jections are  specificallv  and  seasonably  interposed.4     Even  as 


1  State  v.  Hattabough,  66  Ind.  223; 
State  v.  Walters.  64  Ind.  226;  Peoples' 
Savings  Bank  v.  Finney,  63  Ind.  460; 
Critchell  v.  Drown,  72  Ind.  539;  Archey 
v.  Knight,  61  Ind.  311;  Beck  v.  State, 
72  Ind.  250;  Truman  v.  Scott,  72  Ind. 
j^S;  Ridenour  v.  Beekman, 68  Ind. 236; 
Field  V.  Burton.  71  Ind.  380;  First  Na- 
tional Bank  v.  Essex,  84  Ind.  144;  Hen- 
dricks v.  Frank.  86  Ind.  278;  Bolin 
Howell,  93  Ind.  329;  Martin  v.  Orr,  96 
Ind.  491;  Dobbins  v.  Baker,  So  Ind.  52; 
er  v.  Acklemire,  Si  Ind.  1 63 ; 
Walker  v.  Hill,  11 1  Ind.  223;  Bender 
-.  W ampler,  84  Ind.  172;  Etter  v.  An- 
derson, 84  Ind.  333;   Burk  v.  Simonson, 


E.  Rep. 793;  Essig  v.  Lower, 120  Ind. 239, 
21  N.  E.  Rep.  1090;  Kleyla  v.  Haskett, 
112  Ind.  515,  14  N.  E.  Rep.  387;  Pick- 
ering V.  State.  106  Ind.  228,  6  N  .  E.  Rep. 
611;  Field  v.  Malone,  102  Ind.  251; 
Quarl  :'.  Abbett,  [02  Ind.  233;  Dowell 
v.  Lahr,  97  Ind.  146;  Carrico  v.  Tar- 
water,  103  Ind.  S6.  The  general  doc- 
trine was  correctlv  laid  down  in  Trew 
v.  Gaskill,  in  Ind.  205,  and  Dronillard 
v.  Whistler,  29  Ind.  552,  as  Well  as  in 
the  later  cases,  but  it  was  departed  from 
in  Fontaine  v.  Houston,  5S  Ind.  316; 
Brenner  v.  (.Juick,  SS  Ind.  546,  and  Viz- 
zard  v.  Taylor,  97  Ind.  90.  It  is  evident 
that  these  last   named  cases  can  not  be 


104  Ind.  173:   Richard  Green,  130  sustained    without   overruling    a    long 

U    S.  104.     See,  ante,  §  175,  n.  3.  line  of  cases  extending  as  far  back,  at 

*  Galpin  v.  Page,  [8  Wall.  350,  369.  least,  as  the  case  of  Evansville,  etc.,  Co. 
3  R.  S..  §  651.  v.  City  of  Evansville,  15  Ind.  395. 

*  Goodell  V.  Starr.   127  Ind.   [98,  26  N. 


process.  155 

against  a  direct  and  seasonable  attack  immaterial  or  formal  de- 
fects will  not  avail,  for  mere  formal  or  unimportant  defects  in 
notice  by  publication  will  not  vitiate.1  An  order  for  publication 
is  essential,2  but  we  suppose  that  if  the  court  should  act  upon 
the  notice  on  the  presentation  of  the  proof  of  publication  the 
order  then  made  would  be  valid  as  against  a  collateral  attack. 
Where  there  is  a  seasonable  and  direct  attack  upon  the  affida- 
vit and  notice  it  will  prevail  if  there  is  an  omission  of  some 
material  matter  required  by  the  statute.3  If  the  notice  should 
be  insufficient  a  second  notice  may  be  given,  provided  the  time 
designated  for  perfecting  the  appeal  has  not  expired,  and  even 
if  the  time  has  expired  the  court  may  relieve  the  appellant  if 
fraud  or  accident  is  clearly  shown  and  it  is  made  to  appear  that 
no  fault  of  his  contributed  to  render  the  notice  ineffective.  The 
principle  which  we  have  elsewhere  stated  and  discussed  justifies 
this  conclusion,  inasmuch  as  all  courts  of  general  superior  juris  • 
diction  have  power  to  relieve  an  innocent  and  meritorious  party 
from  injury  because  of  fraud  or  accident.4  But,  as  we  have 
said,  a  party  who  invokes  the  exercise  of  this  power  must  make 
a  strong  and  clear  case,  otherwise  the  ordinary  rules  of  proced- 
ure must  prevail.  As  such  an  application  asks  extraordinary 
relief  and  proceeds  upon  the  theory  that  the  case  is  one  appeal- 
ing to  the  equity  power  of  the  court  facts  must  be  alleged  which 

1  Harris  v.  Clafflin,  36  Kan.  543,  13  Rep.  576.  But  other  courts  take  a  more 
Pac.  Rep.  830;  United  States,  etc.,  Co.  liberal  view  of  the  subject  and  lav  down 
».  Martin,  43  Kan.  526, 23  Pac.  Rep.  586;  a  rule  substantially  the  same  as  that 
Lane  v.  Innes,  43  Minn.  437.  45  N.  W.  adopted  by  our  own  court.  Ligare  v. 
Rep.  4.  Some  of  the  cases,  however,  re-  California,  etc..  Co.,  76  Cal.  610,  iS  Pac. 
quire  great  strictness  in  cases  of  the  Rep.  777;  Bogle  t\  Gordon,  39  Kan.  31, 
publication  of  notice.  Freeman  v.  Haw-  17  Pac.  Rep.  S57;  Allen  v.  Ray,  96  Mo. 
kins,  77  Tex.  49S,  14  S.  W.  Rep.  364;  542,  10  S.W.  Rep.  153;  Elting  v.  Gould, 
Colton  v.  Rupert,  60  Mich.  31S,  27  N.  96  Mo.  535,  9  S.  W.  Rep.  922. 

W.  Rep.  520.  i  As  elsewhere  said,  the  term   "  acci- 

2  Frisk  v.  Reigelman,  75  Wis.  499,  43  dent,"  as  used  in  decisions  upon  ques- 
N.  W.  Rep.  1 1 17.  tions  of  procedure,  means  much  more 

3  Some  of  the  courts  declare  that  a  than  it  does  when  used  in  ordinary 
slight  departure  from  the  statute  will  matters,  for  the  signification  assigned 
vitiate  the  notice.  Feikert  v.  Wilson,  it  is  substantially  that  which  the  courts 
38  Minn.  341,  37  N.  W.  Rep.  585;  Ad-  of  chancery  gave  it. 

erson  v.  Marshall,  7  Mont.  2SS,  16  Pac. 


156  APPELLATE  PROCEDURE. 

make  a  case  requiring  the  exercise  of  the  power  under  which 
courts  of  equity  grant  relief  from  fraud  and  accident. 

§  184.  Proof  of  Publication — Proof  of  the  publication  must  be 
made  substantially  as  the  statute  provides.  The  printed  notice 
must  appear  as  published  or  the  proof  will  be  insufficient,  for 
without  a  copy  of  the  published  notice  there  can  not  be  a  sub- 
stantial compliance  with  the  statute.  The  affidavit  of  publica- 
tion may  be  made  by  the  printer,  his  foreman,  his  clerk,  or  "by 
any  competent  witness."  l  It  is  evident  that  the  term  "  compe- 
tent witness"  is  employed  in  a  somewhat  restricted  sense,  for, 
taking  it  in  connection  with  the  specifically  enumerated  classes, 
it  must  be  deemed  to  mean  one  who  has  a  competent  knowledge 
of  the  fact  of  publication.2  The  affidavit  should  show  that  the 
person  who  makes  it  has  such  a  connection  with  the  newspaper 
in  which  it  was  published  as  to  enable  him  to  acquire  a  knowl- 
edge of  the  time  and  mode  of  publication.3  The  proof  should 
state  that  the  publication  was  made  each  week  for  the  requisite 
number  of  weeks.1  The  last  publication  must  be  complete  the 
designated  number  of  days  prior  to  the  hearing,  but  it  is  not 
necessary  that  there  should  be  four  insertions  of  the  notice.5 

§  185.  Amendment  of  the  Proof  of  Notice — In  the  proper  case 
and  upon  due  application  the  proof  of  publication  may  be 
amended,0  but  there  can  be  no  amendment  unless  the  facts 
which  justify  it  are  affirmatively  shown.  An  amendment  can 
not  ordinarily  be  made  as  of  course,  but  leave  must  be  obtained. 
In  accordance  with  the  general  rule  that  a  party  who  asks  leave 

1  R.  S.,  §  4S1,  subdivision  3.  Indianapolis   National   Bank.  125    Ind. 

2  In  an  analogous  case  it  was  held  3S1;  Smith  v.  Rowles,  S5  Ind.  264; 
that  an  affidavit  made  by  the  book-  Rhoadesf.  Delaney,  50  Ind.  468;  Mere- 
keeper  of  the  publisher  was  sufficient,  dith  v.  Chancey,  59  Ind.  466;  Carlow  v. 
Andrews  v.  The  Ohio,  etc.,  R.  Co..  14  Aultman,  2SNeb.672,44N.W.Rep.873. 
Ind.  169.  As  to  the  character  of   the  newspaper 

v.  Wilson,  52  Ark.  312.  12  S.  in  which  notice  may  be  published,  see, 

W.  Rei>.  576.  Railton  v.  Lander.  126  111.  219,  iSN.E. 

'  Fisk  v.  Reigleman,  75  Wis.  499,  43  Rep.  555:     Fisk  v.  Reigleman,  75  Wis. 

N.  W.  Rep.  1 1 17.     See.   Davis  v.  Rob-  499.  43  X.  W.  Rep.  n  17;  Shaw  v.  Wil- 

inson,  70  Texas,  $94,  7  S.  W.  Rep.  749.  liams,  S7  Ind.  15S. 

'  Security,  etc.,  Co.  v.  Arbuckle,  123  8  Hackett  v.  Lathrop,  36  Kan.  661,  14 

Ind.  518,  24   X.  E.  Rep.  329;     Horn  v.  Pac.  Rep.  220. 


PROCESS.  157 

to  make  an  amendment  must  show  cause,  a  party  asking  to 
amend  the  proof"  of  publication  should  show  sufficient  cause  for 
his  application.  In  order  to  do  this  it  is  generally  necessary 
to  show  a  reasonable  excuse  for  the  mistake  in  the  original 
proof  of  notice.  Courts  ordinarily  require  one  who  asks  leave 
to  correct  a  mistake  in  process  to  show  that  the  mistake  was 
not  attributable  to  his  own  culpable  negligence. 


CHAPTER  IX. 


THE   RECORD   AND  TRANSCRIPT. 


Appeals  are  tried  by  the  record. 
[87.  Record  can  not  be  made  by 
agreement. 

Remedying  defects  in  the  tran- 
script by  agreement. 

The  difference  between  the  rec- 
ord and  the  transcript. 

The  record  of  the  trial  court. 

Direct  and  collateral  motions. 

Adding  to  the  intrinsic  record 
by  special  order. 

Special  cases — Default,  ques- 
tions upon  instructions. 

194.  The  record  on  appeal. 

195.  Transcript — Requisites  of. 


iSS. 

IS9. 

190. 

191. 

I  i)2. 

io3- 


§  196.  What  the  transcript  should  con- 
tain— Generally. 

197.  Independent  cases  can  not  he  in- 
cluded in  one  transcript. 

19S.    Matters  embraced  in  an  appeal. 

[99.  Practice  where  transcript  con- 
tains improper  matter. 

200.  Directions   to  the    clerk  — Pre- 

cipe. 

201.  Authentication  of  the  transcript. 

202.  Constituent  parts  of  the  record 

as  prescribed  by  the  statute 

203.  Authority    of  the  appellate  tri- 

bunal over  the  transcript. 

204.  Marginal  notes. 


§  186.  Appeals  are  tried  by  the  Record — The  transcript  is  the 
source  from  which  appellate  tribunals  obtain  their  knowledge 
of  the  facts  involved  in  the  controversy  between  the  parties  be- 
fore them,  as  well  as  the  source  from  which  they  derive  their 
knowledge  of  the  questions  upon  which  it  is  their  duty  to  pro- 
nounce judgment.  The  reports  contain  many  cases  where  par- 
ties acted  as  if  they  were  ignorant  of  this  principle,1  and  this 
excuses  the  statement  of  a  principle  so  plain  as  to  scarcely  ex- 
cuse its  expression  in  words.  The  courts  have  again  and  again 
adjudged  that  appeals   are  heard  upon  the  record  and  by  the 


1  Columbus,  etc.,  R.  R.  Co.  v.  Gibbs,  Spangler  -'.  San  Erancisco.  S4  Cal.  12, 

-t  So                   Clark  v.  Wright, 24  So.  State  v.   Adamson  (Minn.).  45  N.  W. 

Car.  526;    Hyatt  v.  Wolfe,  22  Mo   A.pp.  Rep.    152;    Gibbons    v.    Van    Alstyne, 

191;   Burton  v.   Ferguson,  69  Ind.  486,  56    Hun.    639,    9    N.   Y.   Supp.    156; 

I90;   Stegman  v.  Berryhill,  72   Mo.  307;  McArthur  v.  Schultz,  78   Iowa,  364,  43 

Rigler    v.    Rigler,    120    Ind.    431,   433;  N.  W.  Rep.  223. 

(158) 


THE  RECORD   AND  TRANSCRIPT. 


159 


record  determined.1  The  principle  is  often  thus  expressed, 
"  errors  must  be  manifest  on  the  face  of  the  record.'"  It  is  the 
duty  of  the  party  who  asks  an  appellate  tribunal  to  reverse  the 
judgment  of  a  trial  court  to  bring  to  the  higher  court  "  a  perfect 
record."3  The  record  as  embodied  in  a  properly  prepared  and 
duly  authenticated  transcript  imports  absolute  verity,1  and  can 
not  be  aided,  varied,  or  contradicted  by  extrinsic  evidence.5 
The  record  can  not  be  contradicted  by  a  plea  in  the  appellate 
tribunal.6  For  what  is  done  in  the  trial  court  the  Supreme 
Court  "  will  look  only  to  the  transcript  of  its  record."  If  the 
transcript  does  not  contain  all  that  is  essential  to  show  error 
the  appeal  will  fail,  since  errors  will  not  be  presumed  to  exist, 
and  a  radically  imperfect  transcript  can  not  show  error.7 

§  187.  Record  can  not  be  Made  by  Agreement — Records  upon 
which  appellate  tribunals  try  appeals  must  be  founded  upon 
proceedings  actually  had  in  a  trial  court,  and  parties  can  not 
make  a  record  by  agreement  where  no  such  proceedings  have 
been    had."      The   principle    which    prohibits    the    considera- 


1  McCardle  v.  McGinley,  S6  Ind.  538; 
Wishmier  v.  State,  no  Ind.  523;  Hei- 
zer  v.  Kelley,  73  Ind.  5S2;  Vanderkarr 
v.  State,  51  Ind.  91;  Board  v .  Slatter, 
52  Ind.  171;  Mull  v.  McKnight,  67  Ind. 
525;  Combs  v.  State,  75lnd. 215;  Mitch- 
ell v.  Stinson,  80  Ind.  324;  Seager 
v.  Aughe,97  Ind.  2S5;  Keesling  v.  Ryan, 
S4  Ind.  89;  Baker  v.  Loring,  65  Mo.  527; 
Handlan  v.  McManus,  100  Mo.  124,  S. 
C.  iS  Am.  St.  Rep.  533;  State  v.  Potts, 
20  Nev.  3S9,  22  Pac.  Rep.  754;  Arcia  v. 
State,  2S  Tex.  A  pp.  198. 

2  Hudson  v.  Densmore,  68  Ind.  391; 
McCormack  v.  Earhart,  72  Ind.  24; 
Martin  v.  Martin,  74  Ind.  207;  Craw- 
ford v.  Anderson  (Ind.),  Sept.  17,  1S91, 
28  N.  E.  Rep.  314. 

3  Collins  v.  United  States  Express 
Co.,  27  Ind.  n;  Fellenzer  v.  Van  Val- 
zah,  95  Ind.  128;  Campbell  v.  Allen, 61 
Mo.  581;  Morningstar  v .  Musser  (Ind.), 
Nov.  3,  1S91. 

4  Wells    v.    Lea,   20   Mo.    App.  352; 


Walls  v.  Anderson,  etc.,  R.  R.  Co.,  60 
Ind.  56;  Meredith  v.  Lackey,  14  Ind. 
529;  Beavers  v.  State,  5S  Ind.  530; 
Thames  Loan,  etc.,  Co.  v.  Beville,  100 
Ind.  309. 

5  Wishmier  v.  State,  no  Ind.  523, 
526;  Justice  v.  Justice,  115  Ind.  201; 
Louisville,  etc.,  Co.  v.  Boland,  70  Ind. 
595;  Du  Souchett  v.  Dutcher,  113  Ind. 
249;   Evans  v.  Schafer,  SS  Ind.  92. 

6  Lewis  v .  Prenatt,  24  Ind.  9S.  The  rec- 
ord can  not  be  contradicted  by  certifi- 
cate of  officers.  Travwick  v.  Martin 
Brown  Co.,  74  Tex.  522,  12  S.  W.  Rep. 
216.     See  Mitchell  v.   Stinson,  So  Ind. 

324- 

7  Miles  v.  Jennings,  6  Mo.  App.  5S9; 
Bain  v.  Goss,  123  Ind.  511. 

8  Board  v.  Newman,  35  Ind.  10;  Whit- 
man -».  Weller,  39  Ind.  515;  Lane  v. 
Dorman,  3  Scam.  (111.)  238.  S.  C.  36 
Am.  Dec.  543;  Spangler  v.  San  Fran- 
cisco, 84  Cal.  12,  S.  C.  iS  Am.  St.  Rep. 
15S;     State  v.  Burns,  14  Mo.  App.  5S1; 


160  APPELLATE  PROCEDURE. 

tion  of  fictitious  cases  is  violated  where  a  record  has  no  other 
foundation  than  the  agreements  or  stipulations  of  litigants.  As 
it  is  in  the  inception  of  the  case,  so  it  is  on  appeal ;  there  must 
be  more  than  a  feigned  controversy.1  The  transcript  upon 
which  the  appellate  tribunals  act  must  be  that  of  a  record  made 
by  a  trial  court. 

§  188.  Remedying  Defects  in  Transcript  by  Agreement — While 
the  general  rule  is  that  the  record,  and  not  the  agreement  of 
the  parties,  must  present  the  case  to  the  appellate  tribunal  for 
review,  nevertheless  defects  or  omissions  in  a  transcript  may 
be  remedied  or  supplied  by  agreement.2  This,  however,  does 
not  break  in  upon  the  general  rule,  for  the  theory  is  that  stipu- 
lations amending  the  transcript  on  appeal,  or  supplying  omis- 
sions therein,  are  founded  upon  the  record  actually  made  in 
the  trial  court.  It  is  not  implied  in  permitting  corrections 
and  amendments  in  that  mode  that  an  original  record  may  be 
made  on  appeal,  but  the  implication  is  that  such  amendments 
or  corrections  are  necessary  to  truthfully  exhibit  the  rulings  and 
proceedings  of  a  trial  court  in  an  actual  case.3  Nor  is  the  rule 
impinged  upon  by  the  cases  which  hold  that  parties  may  by 
agreement  limit  the  controversy  to  designated  questions,  for  the 
agreement  in  such  a  case  brings  nothing  into  the  record  al- 
though it  may  have  the  practical  effect  to  exclude  some  matters 
from  it. 

§  189.  The  Difference  between  the  Record  and  the  Transcript — 

There  is  a  difference  between  the  record  and  the  transcript,  al- 
though the  words  "record"   and  "transcript"   are  often  used 

Mister  v.  Corrigan,   17  Mo.  App.  510;  '  See,  ante,  Fictitious  Cases. 

Mangels  v.  Mangels,  S  Mo.  App.  603;  2  Truitt  v.  Truitt,  3S  Ind.  16,  21. 

St.  Louis  v.  Mi^ouri.  etc.,  Co.,  12  Mo.  8  Glenn  v.  Fant,  134U.S.39S;  Hard- 

App.  576;  Oder  v.  Commonwealth,  80  ing  v.  Brophy   (111.),  24  N.  E.  Rep.  558; 

Ky.  32.     See,  Saxon  v.  State,  116  Ind.  Hill  v.  First  Nat.  Bank,  42   Kan.  364, 

6;  Crane  v.  Farmer,  14  Col.  294, 23  Pac.  22  Pac.  Rep.  324;  McKenzie  v.  Ballard, 

Rep.  455;    Planters  Ins.  Co. -'.Cramer,  14   Col.   426,   24  Pac.  Rep.    1;    Phila- 

•7  Mi—    200;     Marbury  v.  Madison,  i  delphia,  etc.,  Co.  v.  Shipley,  72  Md.  SS, 

C ranch,  137;    Gillis  v.  Martin,  2   Dcr.  19  Atl.  Rep.  1.     See,  ante,  "  Record  can 

Eq.  470,  S.  C.  25  Am.  Dec.  729;  Good-  not  be  made  by  agreement."  §  1S7. 
wine  V.  Crane.  41  Ind.  335. 


THE   RECORD    AND  TRANSCRIPT.  ]t,\ 

interchangeably.  It  is,  perhaps,  not  always  an  inaccurate  use  of 
the  word  "record"'  to  employ  it  as  signifying  the  transcript 
certified  by  the  clerk  of  the  inferior  court  to  the  superior  tri- 
bunal, but,  nevertheless,  there  is  a  difference  between  the  record 
and  the  transcript.  Original  papers  and  entries  do  not  come 
up  on  appeal,1  except  in  peculiar  and  very  rare  cases.  The 
elements  of  the  record  are,  the  pleadings,  rulings,  entries  and 
the  like,  filed,  made  and  recorded  in  the  trial  court,  whereas 
the  transcript  is,  what  the  term  denotes,  a  copy  of  such  papers, 
instruments  and  entries.  The  one  is  original,  the  other  is  that 
which  is  transcribed,  or  copied,  from  the  original.2  The  tran- 
script, it  is  true,  exhibits  the  original  proceedings  and  records 
them,  but  it  records  them  by  copying  or  transcribing.  While 
it  is  not  always  important  to  observe  the  distinction  between  the 
transcript  and  the  record  it  is  often  necessary  to  do  so  in  order 
to  avoid  confusion. 

§  190.  The  Record  of  the  Trial  Conrt — The  record  made  in 
the  trial  court  is  the  foundation  of  the  subsequent  proceedings. 
What  is  not  there  of  record  can  not  be  put  of  record  on  appeal, 
as  part  of  the  trial  court  proceedings.  It  is  one  thing  to  amend 
the  transcript  and  quite  another  to  change  the  record  made  by 
the  trial  court.  We  are  not  unmindful  of  the  rule  that  the 
record  itself  may  be  amended  by  a  nunc  fro  tunc  entry,  but  the 
right  to  such  an  entry  rests  upon  the  theory  that  the  act  or  rul- 
ing sought  to  be  entered  on  the  order  book  was  actually  done 
or  made,  and  that  it  was  by  mistake  not  properly  evidenced. 
It  is  what  the  trial  court  acts  upon,  and  what  it  does  or  refuses 
to  do,  that  creates  the  elements  out  of  which  the  record  is  con- 
structed. Entries  by  the  clerk  of  orders  or  rulings  of  the  court 
are  legitimate  parts  of  the  record,  but  unofficial  minutes  and 
statements  do  not  constitute  parts  of  the  record  of  the  court.3 
Pleadings,  proper,  are  part  of  the  record,  and  within  this  rule 

1  Cox  v.  Macy,  76  Iowa,  316;  Mitchell  •  3  Vanderkarr  v.  State,  51  Ind.  91; 
v.  Stinson,  So  Ind.  324.  Board  v.  Slatter,  52   Ind.  171;     Mull  v. 

2  Dearborn  r.  Patton,  4  Ore.  5S,  60.  McKnight,  67  Ind.  525;  Lewis  v.  God- 
See,  generally,  Davidson  v. Murphy,  13  man  (Ind.),  27  N.  E.  Rep.  563.  Sec 
Conn.  213,  217;  Danes  v.  Pettit,  11  generally,  State  v.  McKee,  109  Ind.  497; 
Ark.  349,  355.  Clarke  v.  Kane.  37  Mo.  App.  25S. 

11 


102 


APPELLATE  PROCEDURE. 


are  direct  motions  or  motions  of  course,  but  collateral  motions 
arc  not.1  Thus  a  motion  to  strike  out  a  pleading  is  not  in  the 
record  where  there  is  no  bill  of  exceptions  or  order  of  court, 
but  a  motion  for  a  new  trial  is  a  direct  motion,  and  hence  part 
of  the  record.2  But  it  is  only  the  motion  proper  that  is  part  of 
the  record  ;  affidavits,  or  recitals  of  extrinsic  matters,  tiled  with 
or  contained  in  the  motion,  are  not  part  of  the  record  unless 
made  so  by  bill  of  exceptions  or  special  order.3  A  motion  for 
a  change  of  venue  is  a  collateral  motion  and  not  intrinsically  a 
part  of  the  record,1  although,  of  course,  it  may  be  made  so  by 
bill  of  exceptions.  It  has  been  held  that  a  motion  for  judgment 
upon  the  pleadings  is  not  properly  and  directly  a  part  of  the 
record.  Substituted  pleadings,  when  the  substitution  is  ordered 
by  the  court,  are  part  of  the  record  ;  if  not  so  ordered,  they  are 
not."'  Motions  to  suppress  depositions  are  collateral  motions, 
and  can  only  get  into  the  record  by  bill  or  order/'  A  motion  to 
rescind  an  order  remanding  a  case  to  the  court  from  which  a 


1  Washington  Ice  Co.  v.  Lay,  103 Ind. 
p.  Burntrager  v.  McDonald,  34  Ind. 
j 77 .  Ferrier  v.  Deutchman,  51  Ind.  21; 
Orr  v.  Worden,  10  Ind.  553;  Board  :•. 
Montgomery,  109  Ind.  69;  Jarvis  v. 
Banta,  S3  Ind.  52S;  Merritt  v.  Cobb,  17 
Ind.  314.  It  would  seem,  on  principle, 
that  a  motion  to  strike  out  a  pleading 
or  to  make  more  specific  is  a  direct  mo- 
tion and  intrinsically  part  of  the  record, 
but  the  contrary  doctrine  has  long  pre- 
vailed. Merritt  :•.  Cobb,  supra;  Kibby 
V.  Cannon.  9  Ind.  371;  Shaw  v.  Bink- 
ard,  10  Ind.  227;  Murphy  O.Tilly,  11 
I  ml.  511;  Greensburgh,  etc.,  Co.  v. 
Sidener,  40  Ind.  \i\.  School  Town 
v.  Gebhart,  61  Ind.  1S7. 

2  Hunter  v.  Hatfield,  6S  Ind.  j.16; 
M  trtin  v. Harrison, 50 Ind.  270;  Hill  v. 
Newman,  47  Ind.  1S7;  Nichol  v. 
Thomas,  53  Ind.  42;  Jarvis  v.  Banta,  83 
Ind.  528;  Block  v.  Ebner,  54  Ind.  544; 
Schnewind  :■.  Hacket,  54  Ind.  24S.  See 
Davis  v.  Binford,  5S  Ind.  457;  Jenkins 
v.  Corwin,  55  Ind.  21;   Moore  v.  State, 


65   Ind.  213;  Cooper  t'.  Board,  64  Ind. 
520. 

:t  Kleespies  v.  State,  106  Ind.  383; 
Shields  v.  Me  Malum,  101  Ind.  591; 
Harrison  School  Tp.  v.  McGregor,  96 
Ind.  185;  Chambers  v.  Kyle,  87  Ind.  S3; 
Williams  v.  Potter,  72  Ind.  354. 

4  Johnson  -'.Johnson,  115  Ind.  112; 
Norton  v.  State,  106  Ind.  163;  Ulrich 
t\  Ilervev,  76  Ind.  107;  Cochran  v. 
Dodd,  16  Ind.  476;  Horton  v.  Wilson, 
25  Ind.  316.  See,  generally,  Kennedy 
V.  State,  66  Ind.  ^70;  Kesler  V.  Myers, 
41  Ind.  543;  Cline  v.  Gibson,  23  Ind. 
11;  Smith  v.  Smith,  77  Ind.  So;  Board 
T1.  Henson,  S3  Ind.  469. 

5  Burkham  v.  McElfresh,  88  Ind.  223. 
In  Hall  v,  Durham,  109  Ind.  434,  it  was 
held  that  an  entry  of  the  clerk  as  to  the 
direction  given  a  jury  was  not  neces- 
sarily a  part  of  the  record. 

c  Smith  v.  Kyler,  74  Ind.  575.  See, 
generally,  Lucas  v.  State,  S6  Ind.  1S0; 
Long  v.  Town  of  Brookston,  79  Ind. 
1S3. 


THE  RECORD  AND  TRANSCRIPT.  1(_;3 

change  of  venue  was  taken  is  not  inherently  part  of  the  record.1 
Motions  to  tax  costs,  to  set  aside  rules  to  plead,  and  the  like, 
are  not  properly  parts  of  the  record,  because  they  are  collateral 
motions.2  To  the  class  of  collateral  motions  belongs  a  motion 
to  submit  a  case  to  a  jury  for  trial.3  Many  cases  held  that  a 
motion  for  a  judgment  on  answers  to  interrogatories  returned 
by  a  jury  was  a  collateral  motion,  but  they  are  overruled  by  the 
later  cases.4 

§  191.  Direct  and  Collateral  Motions — A  direct  motion  may  be 
roughly  defined  to  be  a  motion  of  course,  immediately  relating 
to  and  founded  upon  matters  of  record,5  while  a  collateral 
motion  may  be  said,  in  general  terms,  to  be  a  motion  not  in  clue 
course,  but  a  special  motion  directed  to  matters  not  of  record, 
although  legitimately  connected  with  matters  of  record.  It 
seems,  on  principle,  that  a  direct  motion  based  exclusively  upon 
matters  appearing  of  record,  needing  no  extrinsic  matters  to  aid 
it,  and  determinable  upon  a  bare  inspection  of  the  record, 
should  be  deemed  necessarily  and  intrinsically  a  part  of  the 
record,  not  requiring  a  special  order  or  a  bill  of  exceptions  to 
make  it  a  part  of  the  record  proper.  But,  in  view  of  the  long 
line  of  decisions,  it  would  be  unsafe  to  act  upon  this  principle. 
The  doctrine  deducible  from  the  adjudged  cases,  we  say  with 
regret,  is  that  almost  all  motions,  whether  founded  entirely  on 
matters  of  record  or  not,  are  collateral  motions.  This  doctrine 
has  resulted  in  overloading  records  and  creating  confusion 
without  producing  any  corresponding  benefit.  It  is,  however, 
too  firmly  settled  to  be  changed  otherwise  than  by  legislation. 
The  safe  course,  therefore,  is  to  incorporate  all  motions  and  the 
grounds  on  which  they  rest  in  a  bill  of  exceptions,  or  else  se- 

1  Sidener  v.  Davis,  S7  Ind.  342.  cases.     Monroe  v.  Adams  Ex.  Co.,  65 

2  Clodfelter  v.  Hulett,  92  Ind.  426;  Ind.  60;  Salander  v.  Lockwood,66  Ind. 
Hadley  v.  Hadley,  S2  Ind.  95;  Beard  285;  Terre  Haute,  etc.,  Co.  v.  Clark, 73 
v.  Hand,  SS  Ind.  183;  Gallimore  v.  Ind.  16S;  Campbell  v.  Dutch,  36  Ind 
Blankenship,  99  Ind.  390;  Redenbo  v.  504;  Shaw  v.  Merchants  National 
Fretz,  99  Ind.  45S;     Nicholls  v.  State,  Bank,  60  Ind.  83. 

65  Ind.  512.  5  Pratt  v.   Rice.  7  Nev.  123;     United 

3  Hauser  v.  Roth.  37  Ind.  S9.  States    v.  Parrott,  McAll  (U.  S.).  447; 

4  Redinbo  v.  Fretz,  99  Ina.  458.  Freshour  v.  Logansport,  etc.,  Co.,  104 
There  was  conflict    among  the  earlier  Ind.  463. 


164  APPELLATE    PROCEDURE. 

cure  an  order  of  court  making  them  parts  of  the  record,  unless 
they  are  such  as  have  been  expressly  adjudged  not  to  be  col- 
lateral motions.  If  the  decisions  are  to  be  followed  to  their 
logical  result,  few  motions,  indeed,  can  be  deemed  an)-  other 
than  special  or  collateral.  The  tendency  of  the  decisions  is  to 
multiply  collateral  or  special  motions  and  to  restrict  the  number 
of  direct  motions,  so  that  where  there  is  doubt  it  is  safest  to 
embody  the  motion  in  a  bill  of  exceptions. 

§  192.  Adding  to  Intrinsic  Record  by  Special  Order — A  record 
may  be  added  to  by  an  order  of  the  court  directing  that  instru- 
ments of  evidence,  or  the  like,  not  intrinsically  or  necessarily 
parts  of  the  record,  shall  be  made  part  of  the  record.1  The 
statute  requires  an  order  of  the  court  in  the  nature  of  a  special 
order,  and  without  such  an  order  instruments  of  evidence,  in- 
structions, or  the  like,  can  not  be  regarded  as  in  the  record 
unless,  of  course,  brought  in  by  a  bill  of  exceptions.  It  is 
necessary  that  the  court  should  make  the  order.  An  entry  by 
the  clerk  where  there  is  no  order  would  be  destitute  of  force. 
The  settled  rule  is  that  the  unauthorized  entries  of  the  clerk 
and  recitals  interpolated  by  him  go  for  nothing.2  It  is,  there- 
fore, necessary  in  every  instance  that  there  should  be  an  order 
by  the  court,  and,  regularly,  this  order  should  be  recorded  by 
the  clerk. 

§  193.   Special  Cases — Defanlt — Questions  upon  Instructions — The 

statute  makes  provisions  of  a  peculiar  nature  for  preparing  the 
record   in    special   cases.     Two  of  these  cases  we  shall  here 

1  They  may,  of  course,  be  made  part  of  52  N.  J.  L.259, 19  Atl.  Rep.  258;  People 

the  record  by  a  proper  bill  of  exceptions.  :p.  Beaver,83  Cal. 419,23  Pac.  Rep. 321; 

Plank  7'.  Jackson     I  nil.),  27  \.  E.  Rep.  Tennessee,  etc.,  Co.  v.  East  Alabama, 

1117.     But  we  are  here  speaking  of  add-  etc.,    Co.,  Si    Ala.  94;    Sutherland    v. 

ing  to  the  record  proper  by  an  order  of  Putnam    (Ariz.),   24    Pac.    Rep.   320; 

uirt.  Clarke  v.  Kane,  37  Mo.  App.  258;  Baker 

'Young        Martin,  8  Wall.  354;  Hall  v;  Swift,  87  Ala.  530,  6  So.  Rep.    153; 

irham,  109  Ind.434;  Olds  v.  Deck-  People   v.  O'Brien,  7S  Cal.  49,  20  Pac. 

man,  98  Ind.    162;    Kesler  v.  Myers,  41  Rep.  359;  Gould  v.  Howe,  127  111.  251; 

Ind.  543;    Hasselback  v.  Linton,  17  Ind.  Chicago,  etc.,   Co.  v.  Yando,   127   111. 

545;   Vanderkarr   v.  State,  51    Ind.  91;  214;  Bowen  v .  Fox,  99  N.  C.  127,  5  S. 

Board  v.  Slatter,  52  Ind.  171;    Mull    v.  E.    Rep.    437;     Watson   v.    Common- 

Mi  Knigl  '  525;   State  v.  Acker,  wealth,  85  Va.  S67,  9  S.  E.  Rep.  41S. 


THE  RECORD  AND  TRANSCRIPT. 

notice  ;  others  will  be  elsewhere  considered.  The  first  of  the 
cases  we  shall  here  consider  is  that  wherein  a  judgment  is  ren- 
dered by  default.  We  may  preface  our  discussion  of  the  special 
case  mentioned  by  saying  that  where  there  is  an  appearance 
the  summons  need  not  be  made  part  of  the  record.1  It  is  obvi- 
ous that  while  the  appellant  is  not  obliged  to  cause  the  summons 
to  be  brought  into  the  record  by  order  or  by  bill  of  exceptions 
in  a  case  where  there  is  an  appearance,  he  may  do  so  even  in 
such  cases  where  he  desires  to  present  a  question  upon  the  writ 
or  its  service.2  Indeed,  he  must  do  so  or  no  question  of  the 
kind  will  be'presented.  But  where  there  is  a  default  the  sum- 
mons must  be  deemed  an  elemental  or  intrinsic  part  of  the 
record.3  The  other  special  case  to  which  we  refer  is  that  of  ap- 
peals upon  questions  presented  by  the  instructions.4  The  object 
of  the  statute  is  clear,  for  it  can  not  be  doubted  that  it  was  in- 
tended to  enable  parties  to  present  questions  upon  instructions 
without  cumbering  the  record  with  a  mass  of  evidence.  The 
statute  is  remedial  and  hence  should  be  liberally  construed. 
By  its  rules  and  by  its  decisions  the  Supreme  Court  has  en- 
deavored to  give  the  statute  a  practical  and  liberal  construction.5 
But  liberal  as  the  rule  should  be,  it  can  not^  without  a  violation 
of  principle,  be  so  extended  as  to  permit  a  party  to  appeal  un- 
der one  statute  and  subsequently  invoke  the  benefit  of  another 
and  different  one.6  In  preparing  the  record  for  an  appeal  upon 
instructions  a  bill  of  exceptions  is  necessary,  and  in  the  bill  these 

1  This  is  the  direction  of  the  statute,  the  modifications  thereof,  it  shall  not  be 
R.  S.,  §  650.  This  provision  refers  to  necessary  to  set  out  in  the  record  all 
records  for  appeals  and  probably  can  the  evidence  given  in  the  cause,  but  it 
not  be  considered  as  a  provision  cover-  shall  be  sufficient  in  the  bill  of  excep- 
ing  all  cases,  as  for  instance  cases  where  tions  to  set  out  the  instructions  or 
a  complete  record  is  required.  But  modifications  excepted  to,  with  the  re- 
this  is  aside  from  our  discussion,  and  cital  of  the  fact  that  the  same  were  ap- 
we  simply  make  a  suggestion;  we  give  plicable  to  the  evidence  in  the  cause.'" 
no  opinion.  5  Rule  XXX;  Mercer  v.  Corbin.   117 

2  Cincinnati,   etc.,  Co.    v.   Heim,   97  Ind.  450;  Jones  v.  Foley,  121  Ind.  1S0; 
Ind.  525.  Shugart  v.  Miles,  125  Ind.  445;   Shewal- 

3  Woods  v.  Brown,  93  Ind.  164.  ter  v.  Bergman,  123  Ind.  155,  158;   Me-- 

4  The    statutory    provision    is    this:  Coy  v.  Trucks,  121  Ind.  292. 

"•  When  in  any  case  an  appeal  is  prose-         6  McCoy    v.    Trucks,    121    Ind.    292; 
cuted  upon  the  question  of  the  correct-     Shewalter  v.  Bergman,  123  Ind.  155. 
ness  of  instructions  given  or  refused  or 


1  Go  APPELLATE   PROCEDURE. 

ential  matters  should  appear:  i.  The  request  for  written 
instructions.  2.  The  instructions  given  and  refused,  and,  if 
modified,  the  modifications.  3.  The  exceptions.  4.  A  state- 
ment that  there  was  competent  evidence  material  to  the  point 
covered  by  the  instructions  tending  to  support  the  theory  of  the 
party  who  excepts.  The  statement  that  there  was  evidence 
material  to  the  point  or  points  covered  by  the  instructions 
should  be  definite  and  clear  ;  it  should  not  only  show  that  there 
was  competent  and  material  evidence  but  it  should  show,  also, 
that  the  evidence  tended  to  sustain  the  theory  of  the  party. 
All  the  instructions  given  should  be  incorporated  in  the  bill, 
since  instructions  are  to  be  considered  as  an  entirety,  and  where 
instructions  are  refused  it  is  necessary  that  all  given  should  be 
in  the  record,  otherwise  the  presumption  will  be  that  those  re- 
fused were  covered  by  those  given.  The  instructions  as  asked 
should  appear  as  they  were  originally  written,  and  so  must  the 
modifications  where  the  attack  is  based  upon  the  action  of  the 
court  in  modifying  the  instructions.  The  request  should  appear 
and  be  so  fully  stated  as  to  show  that  it  w-as  in  due  form  and 
submitted  at  the  proper  time.  The  exceptions  must  be  shown, 
and,  of  course,  shown  to  have  been  properly  and  seasonably 
taken  and  well  reserved.  It  is  safe  and,  certainly,  not  improper, 
to  notify  the  trial  court  that  the  record  is  to  be  made  up  under 
the  statute.  We  hardly  need  add  that  the  pleadings  must  be 
exhibited  in  the  transcript  and  the  proper  motion  for  a  new  trial 
must  be  duly  made  and  shown  by  the  record.  An  appeal  upon 
the  instructions  is  in  many  respects  similar  to  an  appeal  in  cases 
where  questions  of  law  are  reserved  under  the  statute.1  There 
are,  however,  some  important  differences.  Appeals  under  the 
statute  governing  appeals  in  cases  of  reserved  questions  of  law 
are  not  confined  to  questions  arising  upon  instructions,  while 
the  statutory  provision  giving  appeals  upon  instructions  is  re- 
stricted to  questions  presented  by  the  instructions.  Where 
questions  of  law  are  reserved  under  the  statute  authorizing  it, 
the  party  who  appeals  must  notify  the  trial  court  that  he  intends 
to  appeal  upon  the  questions  of  law  reserved  and  upon  a  bill 

1  R.    S..    §    630.     It   is    evident   that     plicable  where  the  appeal  involves  only 
much,  but   not   all,  that    is   decided    in     rulings  upon  instruct] 
irl   v.  Miles,   [25  Ind.  .445,  is  ap- 


THE  RECORD   AND  TRANSCRIPT.  167 

of  exceptions,  whereas  no  such  requirement  is  made  in  the 
statute  which  declares  what  the  record  shall  be  where  the  ap- 
peal is  from  rulings  upon  instructions.  What  the  record  shall 
embrace  in  the  latter  case  is  declared  by  the  statute  directly, 
while  in  the  former  there  is  no  explicit  direction  as  to  what  the 
record  shall  contain.  There  is,  however,  a  direction  as  to  what 
the  court  shall  do. 

§  194.  The  Record  on  Appeal — When  the  transcript  comes  into 
the  appellate  tribunal  it  may  properly  be  regarded  as  a  part  of 
the  record  of  that  court.  It  becomes  such  by  being  certified 
and  filed  there  in  all  cases  where  such  steps  are  taken  as  con- 
fer jurisdiction.  But,  while  the  transcript  may  be  regarded  as 
part  of  the  record  of  the  court  to  which  the  case  is  appealed,  it 
is  by  no  means  all  of  the  record.  Notices,  orders,  and  the  like, 
given  and  made  on  appeal,  are  essential  parts  of  the  record  of  the 
appellate  tribunal.  Of  its  records  that  tribunal  has  the  custody 
and  over  them  it  has  exclusive  control.  This  must  necessarily  be 
so,  since  if  it  were  otherwise  the  court  could  not  be  independ- 
ent, nor  could  it  properly  perform  its  functions.  Whatever  re- 
lates to  the  record  on  appeal  is  matter  for  the  consideration  of 
the  court  having  jurisdiction  of  the  appeal,  so  that  if  changes 
or  amendments  are  desired  in  the  record  of  that  court,  the  ap- 
plication must  be  there  made.  But,  as  we  have  substantiallv 
said,  and  here  repeat  to  prevent  misunderstanding,  the  record 
of  the  trial  court  remains,  and  changes  in  the  entries  there 
necessary  must  be  there  procured.  The  transcript  does  not  re- 
move the  original  record,  although  the  appeal  does  remove  the 
case.1 

§  195.  Transcript — Requisites  of — The  transcript  must  contain 
such  matters  as  overcome  the  presumption  in  favor  of  the  reg- 
ularity   of    the    proceedings    and    rulings    of  the    trial    court.2 

1  Satterlee  v.  Bliss.  36  Cal.  489,  521;  147;  Railsback  v.  Walke,  Si  Ind.  409; 

Boston  v.  Haynes, 31  Cal.  107:  Buckman  Graves  v.  Duckwall,  103  Ind.  560;  Har- 

"'.     Whitney.    24    Cal.    267;     Bonds   v.  ter  v.  Eltzroth,  in  Ind.  159,  160;  Cline 

Hickman,  29  Cal.  460.  464.    See  "  Effect  v.  Lindsey,  no  Ind.  337,  339;  Po\\\ 

of  the  Appeal."  Chapter  XXIII.  State, 87  Ind.  144;   Rothrock  v.  Perkin- 

J  Fellenzer  v.   Van    Valzah,    95    Ind.  son,  61  Ind.  39;  Vanvalkenberg  v .  Van- 

12S,   131;   Bintord    v.    Minor,    101    Ind.  valkenberg,  90  Ind.  433. 


168  APPELLATE  PROCEDURE. 

It  must  show  error.1  The  record  must  be  complete  in  itself.- 
Not  only  must  the  presumption  which  prevails  in  favor  of  the 
rulings  of  the  trial  court  (and  which  authorizes  the  prima  facie 
assumption  that  the  decision  appealed  from  was  correct)  be 
overcome,  but  it  must  also  appear  from  the  record  that  the  rul- 
ings complained  of  were  prejudicial,  or  probably  prejudicial,  to 
the  substantial  rights  of  the  appellant,  for  judgments  are  not 
reversed  because  of  immaterial  errors,  which  do  no  substantial 
harm  to  the  appellant.3 

§  196.  What  the  Transcript  should  Contain — Generally — A  tran- 
script should  contain  copies  of  pleadings,  instruments  and 
entries  which  are  properly  part  of  the  record,  "  embraced  in  the 
appeal,"  and  no  others.1  Instruments,  pleadings,  entries,  or 
the  like  should  not  be  copied  into  the  transcript  unless  they  are 
legitimately  a  part  of  the  record  made  by  the  trial  court.  If, 
however,  it  appears,  upon  an  inspection  of  the  transcript, 
without  reference  to  extrinsic  matters,  that  any  instrument, 
pleading,  or  the  like  exhibited  therein  is  not  a  proper  part 
of  the  record,  the  court,  on  examination,  will  disregard  it. 
The  court  will  not  act  upon  matters  not  properly  in  the  record, 
if  attention  be  duly  directed  to  the  infirmity  in  the  transcript. 
It  is  not  necessary  to  move  to  strike  out  parts  of  a  transcript 

1  Cleveland,  etc.,  Co.  v.  Closser,  120  pie,  31  Cal.  662;  Gates  v.  Walker.  35 
I  mi.  348,  364;    Crawford  v.  Anderson     Cal.  2S9. 

(Ind.),  2S  N.  E.  Rep.  314;  Kiernas  v.  s  Kernodle  v.  Gibson,    114    Ind.    151, 

Wolff,  56  Hun.  647,  10  N.  Y.  Supp.  79;  453;  Becknell  v.  Becknell,  no  [nd.    \i\ 

Coburn  v:  Ames,  So  Cal.  243,  22  Pac.  Stewart  v.  State,  1 1 1  Ind.  554;    Whisler 

Rep.  174;  Perkins  v.  Hay  ward,  124  Ind.  v.  Lawrence,   112    Ind.  229;    Keller:'. 

145;    Devereux    v.   Champion    Cotton  Fitzell,  65  Cal.  87;    Dye    v.    Mann.    10 

Mills,    17  So.  Car.  66,  72;    Scovern  v.  Mich.  291;  Weir  v. Burlington, etc.,Co., 

.   6  Ohio  St.  2SS;    McGowan   v.  19  Neb.  212;  Came  v. Truman,  103  111. 

Wilmington,  etc.,  Co.,  95   N.  C.  417;  321;  Heymes  v. Champlin,  52  Mich.  25; 

elle  v.  Westchester,  etc.,   Co.,   51  McNeal  :•.  Oats  Co.,  51  Vt.316;  T 

\'t.   4;    Ziegler    v.    Handrick,  106  Pa.  v.  Pierce,  1 19  Pa.  St.  139.     See  author- 

St.   S7;    Lett  v.  Horner,  5  Blackf.  296;  itios  cited  in  note  2.     See,  also,  Preju- 

[ndianapolis,  etc.,  Co.  v.  Herkimer,  46  dicial  error,  post. 

Ind.  142.  *  Mitchell    v.    Stinson,    So    Ind.  324; 

2  Indiana,  etc.,  Co.  r.  Keeney,  93  Ind.  Burkham  v.  McElfresh,  SS  Ind.  223; 
100;  Spangler  v.  San  Francisco,  84  Cal.  Dimick  v.  Campbell,  31  Cal.  238;  Mor- 
12,  18  Am.  St.  R.  158;   Kimball  v.  Sem-  ri>  v.  Angle.  42  Cal.  236.  240:   Douglass 

v.  Dakin,  46  Cal.  49,  52. 


THE   RECORD  AND  TRANSCRIPT.  169 

because  improper  entries,  instruments  or  the  like  are  copied,  in 
cases  where  the  record  itself  fully  discloses  the  grounds  of  ob- 
jection, but  it  is  proper  to  object  to  the  consideration  of  the 
illegitimate  parts,  to  point  them  out,  and  specifically  state  the 
objections. 

§  197.   Independent  cases  can  not  be  included  in  one  Transcript — 

The  rule  that  a  transcript  must  cover  one  case,  and  be  complete 
in  itself,  forbids  that  several  cases  should  be  included  in  the 
same  transcript.  Where  there  are  several  independent  actions 
the  general  rule  is  that  there  must  be  a  separate  transcript  for 
each  action.1  This  rule  does  not,  of  course,  apply  where  there 
is  a  single  action  or  suit,  although  there  may  be  many  parties 
and  diverse  interests,  since  a  suit  or  action  is  ordinarily  a  unit, 
and  as  such  is  to  be  prosecuted.  Nor  does  the  rule  prevent  the 
consolidation  of  cases  involving  the  same  questions,  and  prop- 
erly constituting  a  complete  action  or  suit.  Nor  does  the  rule 
operate  where  the  proceedings  are  blended  and  the  one  is  sup- 
plemental to  the  other.2  It  is  not  easy  to  fix  specific  limits  to 
the  rule,  but  what  has  been  said  is  an  outline  of  the  scope  and 
effect  of  the  doctrine. 

§  198.  Matters  embraced  in  an  Appeal — The  appellant's  duty  is 
to  bring  to  the  appellate  tribunal  a  transcript  of  so  much  of  the 
record  as  is  embraced  in  the  appeal.3  What  is  embraced  in  the 
appeal  must  always  appear  in  the  transcript,  but  it  is  not  every 
instance  in  which  all  the  rulings,  entries,  and  proceedings  are 
necessarily  embraced  in  an  appeal.  That  the  statute  does  not  re- 
quire that  the  transcript  shall  embody  all  rulings  or  entries  made 
by  the  trial  court,  or  all  papers  there  filed,  is  clear  enough, 
since  it  is  declared  that  the  appellant  may  direct  what  the  tran- 
script shall  include.4  The  plain  implication  is  that  it  is  not  al- 
ways necessary  to  make  a  transcript  of  the  complete  record. 
But  while  it  is  true  that  it  is  not  necessary  in  every  instance  to 
bring  to  the  appellate  tribunal  a  transcript  of  an  entire  record, 
and  also  true  that  the  appellant  may  specify  what  parts  of  the 

1  Rich  v.  Starbuck,  45  Ind.  310.  v.   Alvord,    27    Ind.  495;    Vanliew    v. 

2  Sanford  v.  Tucker,  54  Ind.  219.  State,  10  Ind.  3S4. 
s  Heizer  v.  Kelly,  73  Ind.  5S2;   Watt        *  R.  S..  §  649. 


170  *  APPELLATE   PROCEDURE. 

record  shall  be  embodied  in  the  transcript,  it  is,  nevertheless, 
true  that  the  transcript  must  be  full  enough  to  manifest  error 
and  to  cover  so  much  of  the  record  as  is  necessarily  involved 
in  the  appeal.  We  suppose  that  if  the  transcript  shows  on  its 
face  that  it  covers  onlv  part  of  the  rulings  and  proceedings  upon 
a  single  and  independent  matter,  it  would  be  insufficient.1  If, 
for  instance,  it  should  show  only  part  of  a  series  of  instructions 
upon  a  single  and  indivisible  question,  it  would  not  be  sufficient 
to  authorize  a  reversal,  inasmuch  as  it  would  not  exclude  the 
presumption  that  other  instructions  correctly  presented  the  case 
to  the  jury.  The  pleadings  must,  in  general,  be  regarded  as 
part  of  the  record  embraced  in  an  appeal,  since,  in  their  ab- 
sence, it  would  not  be  possible  to  ascertain  what  was  in  con- 
troversy.1' 

§  199.  Practice  where  Transcript  contains  improper  matter — 
The  rule  that  no  motion  to  strike  out  is  necessary  or  proper 
where  the  face  of  the  transcript  itself  exhibits  the  fact  that 
the  parts  objected  to  are  not  legitimate  parts  of  the  record 
does  not  apply  where  the  fact  does  not  appear  from  an  in- 
spection of  the  record.  If  the  facts  appearing  from  an  inspec- 
tion of  the  transcript  are  such  as  show  that  instruments,  plead- 
ings, or  entries  are  improperly  copied  into  it,  the  objection 
should  be  made  in  the  brief  or  argument,  the  parts  of  the 
transcript  containing  improper  matters  pointed  out  and  the 
reasons  for  the  assault  upon  the  transcript  succinctly  given.3 
A  motion  to  dismiss  the  appeal  is  not  appropriate.1  Where 
the  transcript  does  not  exhibit  the  facts  essential  to  show  that 
the  transcript  contains  illegitimate  recitals,  papers,  or  plead- 
ing, a  different  procedure  must  be  adopted,  as  ce7-tiorari  or 
the  like.0  Where  improper  matters  are  embodied  in  the  tran- 
script the   party   blamable   may.  upon   the  proper  motion,  be 

1  We  are  here  speaking  of  ordinary  8  Longworth  v.  Higham,  89  [nd.  352. 

Is,  and  cadi's  where  a  peculiar  and  4  Miller  v.  Shriner,  87  Ind.  141 :   ante, 

ial   procedure    is   provided  are    ex-  §  [1 

eluded  from  consideration.  5  Lytic  v.  Lytic.  37  Ind.    281;    Thorn 

7  McCardle  v.  Mc<  i                 tnd.  538;  v.  Wilson,  24  Ind.  $2$. 
er  v.  Aughe,  97   Ind.   285;    Sumner 
.  74  Ind.  293. 


THE  RECORD   AND  TRANSCRIPT.  171 

taxed  with  costs,  but  such  matters,  if  harmless,  will  not  author- 
ize an  application  to  amend  or  correct  the  record.  If  matters 
incorporated  in  the  transcript  are  injurious  they  can  not,  of 
course,  be  treated  as  mere  surplusage,  so  that  it  is  proper  for  the 
party  prejudiced  to  ask  the  court  to  disregard  them  in  all  cases 
where  the  record  discloses  the  grounds  of  the  request ;  but 
where  they  are  not  so  disclosed,  an  application  must  be  made 
to  correct  the  transcript  by  making  it  conform  to  the  record. 
If  the  error  or  omission  is  in  the  record  of  the  trial  court  it  can 
not  be  corrected  on  appeal,  but  application  must  be  made  to 
the  trial  court  to  make  the  required  correction  by  an  order 
nunc  -pro  tunc,  or  in  some  other  appropriate  method. 

§  200.  Directions  to  the  Clerk — Precipe — The  appellant  has  a 
right  to  direct  the  clerk  what  part  of  the  record  he  shall  include 
in  the  transcript.  The  directions  must  be  given  in  writing  and 
the  writing  must  be  appended  to  the  transcript.1  If  there  is  no 
written  direction  specifying  the  parts  of  the  record  of  which  a 
transcript  is  to  be  made  it  is  the  duty  of  the  clerk  to  make  a 
transcript  of  the  whole  record,2  but  what  shall  be  considered 
a  complete  record  in  appellate  procedure  is  designated  by  the 
statute.  The  directions  to  the  clerk  should  be  reasonably 
specific  and  certain,  but  a  reasonably  liberal  construction  will 
be  given  to  the  preci-pe?  If  a  transcript  of  the  whole  record 
is  desired  an  order  in  general  terms  will  be  sufficient. 

§  201.  Authentication  of  Transcript — The  transcript  must  be 
authenticated  by  the  clerk  by  the  appropriate  certificate.4    For- 

1  R.  S.,  §  649-  as  it  is  the  duty  of  such  a  party  to  pre- 

2  Reid  v.  Houston,  49  Ind.  1S1;  Watt  sent  a  transcript  making  error  manifesl 
v.  Alvord,  27  Ind.  495.  Where  written  and  showing  its  prejudicial  character. 
directions  are  given  the  clerk  must  obey  the  fault  is  his  if  the  transcript  do* 
them  and  the  party  appealing  must  see  conform  to  the  law.  If  the  transcript 
to  it  that  he  does  so.  Allen  v.  Gann  is  defective  the  court  may.  at  its  elec- 
(Ind.),  29  N.  E.  Rep.  tion,  either  affirm  the  judgment  or  dis 

3  Powell  v.  Bunger,  91  Ind.  64,  71.  miss  the  appeal.  Allen  v.  Gavin  (Ind.  . 
See,   generally.    Miller  v.    Shriner,    87  29  N.  E.  Rep. 

Ind.   141.     As   the  code   provides  that  *  Boots  r1.  Griffiths.  97  Ind.  241 :    Wal- 

the   party   who    prosecutes   the    appeal  kerf.  Hill,  m  Ind.  223;     Conawav   v. 

may    direct    what    papers    and    entries  Ascherman,  94  Ind.  1S7. 
shall  be  included   in  the  transcript,  and 


172  APPELLATE   PROCEDURE. 

merly  a  very  rigid  rule  was  enforced  respecting  the  authentica- 
tion of  transcripts,  but  by  rules  and  decisions  a  more  liberal  and 
less  technical  doctrine  has  been  established.  Where  the  tran- 
script of  the  entire  record  is  made,  the  certificate  need  only  so 
declare,  but  where  parts  only  of  the  record  are  carried  into  the 
transcript  the  certificate  should  specify  the  parts  copied.1  A 
motion  to  dismiss  because  of  the  insufficiency  of  the  certificate 
comes  too  late  unless  made  before  the  cause  is  submitted.-'  If  a 
party  desires  to  object  to  the  sufficiency  of  the  certificate  he 
should  file  his  motion,  specifically  stating  the  grounds  of  his 
objection,  and  give  notice.  The  adverse  party  may,  upon 
leave,  secure  an  amendment  of  a  defective  certificate,  but  an 
unreasonable  delay  may  be  cause  for  dismissing  his  appeal.3 

^  202.  Constituent  parts  of  the  Record  as  prescribed  by  the  Stat- 
ute— The  constituent  parts  of  a  record  are,  all  proper  entries  of 
the  clerk,4  and  all  papers  pertaining  to  a  cause,5  except  the  sum- 
mons, depositions  and  other  instruments  of  evidence."  Collat- 
eral motions  and  papers  are  not  part  of  the  record  unless  made 
so  by  an  exception  or  order  of  court.  Pleadings  superseded 
by  amendment  are  not  proper  parts  of  the  record,7  nor  are 
pleadings  rejected  on  motion,  unless  expressly  made  part  of  the 
record  in  some  appropriate  method.  A  motion  for  a  new  trial 
is  part  of  the  record  in  the  proper  case,  as  it  is  not  a  collateral 
motion. 8  Where  no  direction  is  given  to  the  clerk  he  should 
put  in  the  transcript  what  the  statute  directs.9  We  have  not 
attempted  here  to  do  more  than  state  in  a  very  general  way  the 
elemental  parts  of  a  record,  as  we  have  elsewhere  considered 
the  subject  at  length. 

1  Reid  v.  Houston,  49  Ind.  1S1.  tions.     Sec  bills  of  exceptions,  post. 

2  Cooper  v.  Cooper,  86  Ind.  75.  7  R.  S.,     650;    Berghoff  v.   McDon- 
B  Jackson  v.  Van  Devender,  76  Ind.  27.     aid,  87  Ind.  549;  Scotten  v.   Randolph, 

4  R.  S.,  §  650.  96  Ind.  581;  Carrothers  v.  Carrothers, 

5  Mere  statements  of  that  officer   are      107  Ind.  530. 

not  part  of  transcript.     Vanderkarr  v.  3  Nichol    v.    Thomas,    53    Ind.    42; 

.  51  [nd.91;   Board  v.   Slatter,   52  O'Donald   v.   Constant,    S2    Ind.   212. 

Ind.  171;    Mull   -.    McKnight,  67    Ind.  Collateral  motions  are  not  part  of  rec- 

525.  ord  unless  specially  made  so.    Jarvis  v. 

6  The  instruments   of   evidence   mav  Banta,  83  Ind.  528. 

be  made  part  of  record  by  bill  of excep-         ;'  Kirbv  v.  Cannon.  9  Ind.  371. 


THE  RECORD  AND  TRANSCRIPT.  173 

§  203.   Authority  of  Appellate  Tribunal  over  the  Transcript— As 

jurisdiction  of  an  appeal  carries  with  it  to  the  appellate  tribunal 
control  over  all  incidents,  it  follows  that  if  a  transcript  is  altered 
after  it  is  filed  in  the  appellate  tribunal,  that  tribunal  may  com- 
pel the  restoration  of  the  transcript  to  its  original  condition  and 
may,  in  the  proper  case,  punish  the  party  who  wrongfully  makes 
the  alteration.  It  has  been  the  practice  of  the  court  to  enter- 
tain motions  to  restore  a  transcript  to  its  original  condition,  but 
the  cases  in  which  it  has  been  called  upon  to  exercise  such 
authority  have  been  very  few.  So  far  as  we  can  discover  there 
is  only  one  decision  upon  the  subject  in  our  reports,  and  in  that 
decision  the  authority  to  dismiss  the  appeal  was  assumed  to 
exist,  but  it  was  held  that  as  there  was  no  corrupt  purpose  in 
changing  the  transcript  the  appeal  would  not  be  dismissed.1  It 
may  be  well  doubted  whether  it  is  not  the  imperative  duty  of 
the  court  to  dismiss  the  appeal  unless  the  party  making  the 
alteration  clearly  exculpates  himself  by  showing  that  there  was 
nothing  more  than  an  innocent  mistake.2 

§  204.  Marginal  Notes— The  appellant  must  cause  the  pages 
and  lines  of  the  transcript  to  be  numbered.  It  is  his  duty  to 
cause  marginal  notes  to  be  placed  on  the  transcript  in  the  ap- 
propriate places,  indicating  the  several  parts  of  the  pleadings 
in  the  cause,  the  exhibits,  the  orders  of  the  court  and  the  bills 
of  exceptions.  Where  the  evidence  is  contained  in  the  tran- 
script the  names  of  the  witnesses  must  be  given.  All  motions 
and  rulings,  and  all  instructions  given  and  refused,  must  be 
referred  to  in  the  marginal  notes  whenever  questions  are  pre- 
sented upon  them.3  The  requirements  of  the  rule  of  which  we 
have  given  a  synopsis  are  important  and  should  be  obeyed.  It 
has  been  said  that  the  absence  of  marginal  notes  is  "good  evi- 
dence that  counsel  have  not  studied  the  record,"  and  there  is 
much  of  truth  in  this  statement.  The  rule  does  not  prescribe 
what  course  shall  be  pursued  in  the  event  of  a  failure  to  comply 
with  it,  and  it  has  not  been  very  strictly  enforced  by  our  courts. 

'  Montgomery  r.Gorrell,  49  Ind.  230.         3  Rule  XXII. 
1  "  Every      presumption      is      made 
against  a  wrong-doer." 


174  APPELLATE  PROCEDURE. 

In  some  of  the  cases  the  court  set  aside  the  submission,1  but  this 
is  obviously  very  seldom  a  punishment  to  the  appellant.2  As  he 
is  the  party  in  fault — for  it  is  a  fault  to  disobey  a  rule  of  court — 
he  should  be  treated  as  a  delinquent  and  not  dealt  with  very 
liberally.  In  one  case  it  was  held  that  the  appellee  must  make 
the  objection  before  submission,3  but  this  can  not  be  the  true 
rule,  inasmuch  as  the  appellee  is  entitled  to  a  properly  annotated 
transcript  in  order  to  prepare  his  brief.  The  annotation  of  the 
transcript  is  by  no  means  an  unimportant  matter,  and  in  man}' 
jurisdictions  the  failure  to  make  the  proper  marginal  notes  is 
considered  as  a  cause  for  dismissal.  It  is,  on  principle,  the  right 
of  the  court  to  dismiss  the  appeal1  or  to  cause  notes  to  be  made 
at  the  expense  of  the  appellant,  and  this  right  is  freely  exercised 
by  most  of  the  courts. 

1  O'Neil  v.  Chandler,  42  Ind.  471;  3  Cooper  v.  Cooper,  86  Ind.  7;: 
Rhodes  v.  Piper,  42  Ind.  474;  Etter  v.  Thompson  v.  Deprez,  96  Ind.67;  Bass 
Armstrong,  42  Ind.  475;  State  v.  Klaas,  v.  Doerman,  112  Ind.  390;  Anderson, 
42  Ind.  1506.  etc.,  Ass'n  v.  Thompson,  87  Ind.  278. 

2  As  Judge  Works  says,  "  But  the  4  We  are  aware  that  it  has  been  de- 
right  to  punish  the  appellant  should  cided  that  the  failure  to  make  marginal 
not  be  confined  to  setting  aside  the  sub-  notes  is  not  cause  for  dismissal.  O'Neil 
mission,  as  appeals  are  sometimes  taken  v.  Chandler,  42  Ind.  471.  But  we  can 
for  delay,  and  to  set  aside  the  submis-  not  think  that  the  holding  is  defen- 
sion  would  assist  him  in  this  object."  sible  on  principle. 

2   Works  Practice,  21. 


CHAPTER  X. 

CORRECTING  AND  AMENDING  THE    RECORD  AND  TRAN- 
SCRIPT. 

§  205.   The  record  below  and  the  record     §  214.   Appeal  from  the  ruling  on  ap- 
on  appeal.  plication    for    nunc   pro   tunc 

206.  Amendments  and  corrections  of  entry. 

the  trial  court  record.  215.    Presenting  the  ruling  on  appeal. 

207.  Effect  of  an  amendment  of  the         216.    Certiorari. 

record  of  the  trial  court.  217.    Duty  of  party  to  apply  for  cer- 

208.  Amendments  not  allowed  after  tiorari. 

the  decision  on  appeal.  218.    Who  may  obtain  a  certiorari. 

209.  Entries  nunc  fro  tunc.  219.    Time  of  making  the  application. 

210.  The  application  to  correct  the         220.    Requisites  of  an  application  for 

trial  court  record.  a  certiorari. 

211.  By  whom    the    motion  may  be         221.    Notice  of  the  application. 

made.  222.    Submitting  the  motion  for  hear- 

212.  Notice  of  the  motion.  ing. 

213.  Evidence  on  the  hearing  of  the 

motion. 

§  205.  The  Record  below  and  the  Record  on  Appeal— We  have 
elsewhere  pointed  out  the  difference  between  the  record  of  the 
trial  court  and  the  record  on  appeal,  and  have  shown  that  the 
difference  is  an  important  one,  inasmuch  as  over  the  one  record 
power  remains  in  the  trial  court,  while  over  the  other  it  resides 
exclusively  in  the  appellate  tribunal.1  In  saying  that  the  higher 
court  can  not  make  an  original  entry  for  the  trial  court,  nor  per- 
form an  act  which  it  is  the  right  and  duty  of  the  trial  court  to 
perform,  and  that  the  trial  court  can  not  exercise  the  slightest 
control  over  the  record  of  the  higher,  little  more  is  done  than  to 
repeat  what  has  already  been  said.  Appellate  courts  do  not 
make  trial  court  entries  nor  trial  court  rulings  in  any  instance 
where  the  appeal  is  from  a  judgment  or  decree  of  a  trial  court. 
There  are  rare  cases  in  which  original  jurisdiction  is  exercised 

1  Ante,  "  Difference  between  the  rec-  record  of  the  trial  court,"  §  190;  "The 
ord  and   the  transcript,"  §  1S9;    "The     record  on  appeal,"  §  194. 

(175) 


176  A.PPELLA  II'.   PROCEDURE. 

by  the  appellate  tribunals  and  in  which  all  rulings  and  all  en- 
tries are  there  made,  but  in  the  vast  majority  of  cases  the  orig- 
inal rulings  and  entries  are  those  of  the  trial  court.  In  such 
cases  the  original  record  remains  in  the  trial  court,1  and  is 
transcribed  and  certified  to  the  appellate  tribunal. 

§  206.   A  in  en  d  in  en  ts  and  Corrections  of  the  Trial  Court  Record — 

Where  the  defect  is  in  the  trial  court  record,  or  where  the  rul- 
ings of  that  court  have  not  been  duly  entered,  the  application 
to  correct  or  amend  the  record  must  be  made  to  that  court.2  An 
application  made  elsewhere  will  be  fruitless.  Appellate  tribu- 
nals have  jurisdiction  to  review  a  ruling  sustaining  or  denving 
an  application  to  amend  or  correct  the  record  remaining  in  the 
inferior  court,  but  the  jurisdiction  is  appellate  and  can  not  be 
made  original  save  by  a  statute  enacted  under  constitutional 
authority.  As  the  jurisdiction  is  appellate,  it  must  be  invoked 
in  accordance  with  the  rules  of  procedure,  and  hence  the 
foundation  must  be  laid  in  the  trial  court.  There  the  original 
proceedings  must  be  taken,  and,  if  a  review  is  sought,  the 
record  must  be  made  up  and  exceptions  so  entered  and  pre- 
served  that  the  questions  shall  be  open  to  investigation  and  re- 
quire judgment.  The  appellate  tribunal  proceeds  upon  a  tran- 
script of  the  proceedings  of  the  court  of  original  jurisdiction, 
and  not  upon  original  pleadings,  papers,  rulings  or  entries.3 

§  207.   Effect  of  an  Amendment  of  the  Record  of  the  Trial  Court — 

Where  a  trial  court  record  is  corrected  or  amended  upon  an 

1  Peterson  v.  Swan.  119N.  Y.  662.  Gamble    v.   Gibson,   83    Mo.   290.     In 

2  Claflin  -'.  Dunne, 1J9  111.  241.  21  X.  E.  Thorn  v.  Wilson,  24  Ind.  ^zt,,  it  was 
Rep. 834;  Rodman  v.  Harvey,  [02  X.C.  said:  "  We  can  not  make  a  record  for 
1,  S  S.  E.  Rep.  SSS;    State   v.   Scheper  any  of  the  lower  courts;   that  is  their 

Car.),  11  S.  E.  Rep.  623;    State  v.  province,  and  all  applications  must    be 

Farrar,  1 « >  4  N.C.  702, 10  S.  E.  Rep.  159;  made    to    them."     Presumption    where 

Lee  (  hm  Quan  Wo  Chung  Co.,  Si  trial   court  refuses  to  amend.     People 

Cal.  222,22    Pac.   Rep.  594;     Stephens  v.  Samario,  84  Cal.  4S4,   24  Pac.   Rep. 

dley,  23  Fla.  393.  2  So.  Rep.  607;  2S3. 
Martin  v.  St.  Louis,  etc.,  Co.,  53  Ark.         3  Doolev  v.  Martin.  2S  Ind.  1S9;   Doe 

250,  [3  S.  W.  Rep.  765;   Saxon  v.  State,  V.  Owen,  2  Blackf.  452;    Jones  v.  Van 

116   Ind.  6,  [8    \.   E.  Rep.  268;    Hamil-  Patten,  3  Ind.  107;  Colerick  v.  Hooper, 

Burch,    :S    Ii  v.  3  Ind.  316. 

well  (X.  V.  .  m   N.  !•:.   Rep.  270; 


CORRECTING  RECORD  AND  TRANSCRIPT.  177 

application  there  filed,  the  amendment  or  correction  becomes 
part  of  the  original  record  in  legal  contemplation,  and  the  party 
desiring  its  presentation  on  appeal  should  apply  for  an  order  to 
have  it  certified  to  the  appellate  tribunal.  The  application  to 
the  trial  court  to  amend  or  correct  the  record  when  made  pend- 
ing an  appeal  is  not,  as  a  general  rule,  to  be  considered  as  an 
independent  proceeding,  but  it  is  to  be  deemed  such  an  incident 
of  the  original  case  as  to  constitute  an  integral  part  of  it.  The- 
oretically, at  least,  there  is  only  one  case  and  one  appeal.1  If 
the  application  to  amend  is  denied  by  the  trial  court,  or  if 
wrongly  granted,  the  rulings  and  papers  should  be  brought  to 
the  higher  court  as  part  of  the  original  appeal.2 

§  208.   Amendments  not  allowed  after  the  Decision  on  Appeal — 

The  rule  is  well  settled  that  amendments  will  not  be  permitted 
after  the  decision  on  appeal.3  The  duty  of  parties  is  to  see  that 
the  record  is  properly  made  up,  and  if  they  fail  to  move  promptly 
in  securing  a  correction  or  amendment,  where  amendments  or 
corrections  are  necessary  to  make  a  perfect  record  or  fully  pre- 
sent the  questions,  their  complaint  will  not  be  heeded.4  It  is 
incumbent  upon  the  party  desiring  the  amendment  or  correc- 
tions to  take  the  necessary  steps  to  secure  it  before  the  record 
is  finally  acted  upon,  and  he  must  see  that  the  officers  of  whom 
duties  are  required  perform  those  duties. 

§  209.  Entries  nunc  pro  tunc — In  correcting  the  original  record 
the  theory  is  that  the  ruling  involved  was  actually  made  but  not 
properly  entered.     There  is  no  right  under  a  proceeding  to  se- 

1  Pleyte  v.  Pleyte,  15  Col.  44,  125,  23  E.  Rep.  1009;  Board  v.  Center  Township. 
Pac.  Rep.  1007;  Wolfley  v.  Lebanon  105  Ind.  422;  Burgett  v.  Bothwell,  S6 
Mining  Co.,  3  Col.  296;  Knox  v.  Mc-  Ind.  149;  Mansur  v.  Churchman,  84 
Farran,  4  Col.  34S.  Ind.  573;   Warner  v.  Campbell.  39  Ind. 

2  Jelley  v.  Gaff,  56  Ind.  331.  In  the  409;  Pittsburgh,  etc.,  Co.  v. VanHouten, 
ca^e  cited  it  was  said:  "We  are  of  48  Ind.  90;  State  v.  Terre  Haute,  etc., 
opinion  that  the  two  records  constitute  Co.,  64  Ind.  297;  Gatling  v.  Newell,  12 
but  one  case.  The  subsequent  proceed-  Ind.  116;  Fielden  v.  People,  12S  111.  ^9^, 
ings  to  correct  the  entry  would  be  unin-  21  N.  E.  Rep.  5S4;  Chesapeake,  etc., 
telligible  without  reference  to  the  orig-  Co.  v.  Higgins,  85  Tenn.  620. 

inal  record."  *  Bannister  v.  Allen,  1  Blackf.  414. 

3  Schrichte  v.  Stites,i27  Ind.  472, 26  N. 

12 


178 


APPELLATE  PROCEDURE. 


cure  the  amendment  or  correction  of  a  record  to  have  a  new  rul- 
ing created  or  an  entirely  new  element  brought  into  the  record 
since,  as  is  well  settled,  there  "  must  be  something  to  amend 
by."  l  The  proceeding  is  curative  rather  than  creative.2  The 
facts  are  assumed  to  be  in  existence  but  the  record  evidence  is 
regarded  as  imperfect  or  incomplete.  It  is  a  necessary  con- 
clusion from  the  principle  stated  that  an  application  for  a  nunc 
pro  tunc  order  will  not  warrant  the  revision  of  a  judgment  or 
decree  although  it  may  authorize  a  correction  or  amendment  of 
the  record  entry.  If  the  decree  or  judgment  expresses  the  de- 
cision rendered,  or  intended  to  be  rendered,  a  mine  pro  tunc 
order  can  not  be  granted.3 


1  A.S  said  in  Kirby  v.  Bowland,  69 
Irui.  20.0:  "A  court  may  record  a  fact 
nunc  pro  tunc,  that  is,  if  the  fact  existed 
then  it  may  be  recorded  now,  but  it  can 
not  record  a  fact  now  which  did  not  ex- 
ist then,  and  there  must  be  some  record, 
note,  entry,  or  minute  of  some  kind  on' 
which  to  base  it,  connecting  it  with  the 
ca>e."  This  doctrine  is  asserted  in  many 
cases.  Makepeace  v.  Lukens,  27  Ind. 
435;  Morgan  v.  Hays,  91  Ind,  132; 
Jenkins  v.  Long,  23  Ind.  460;  Seig  v. 
Long,  72  Ind.  iS;  Hamilton  v.  Burch, 
2S  Ind.  233;  Uland  v.  Carter,  34  Ind. 
344;    Beavers    v.    State,    5S    Ind.    530; 

-Hannah  z\  Dorrell,  73  Ind.  465;  Fire- 
stone v.  Firestone,  7S  Ind.  534;  Will- 
iams v.  Henderson,  90  Ind.  577;  Bole 
:■.  Xewberger,  Si  Ind.  274;  Shaw  v. 
Newsom,  7S  Ind.  335;  Johnson  v.  Moore, 
112  Ind.  91;  Chissom  v.  Barbour, 
100  Ind.  1;  Mohun's  Case,  6  Mod.  59; 
Mitchell  v.  Overman,  103  U.  S  62; 
Ellis  v.  Ewbanks,  3  Scam.  190;  Reid  v. 
M.-rton,  119  111.  11S,  6  N.  E.  Rep.  414; 
Chichester  :>.  Cande,  3  Cowen,  59,  15 
Am.  Dec.  23S. 

2  An  entirely  new  bill  of  exceptions 
can  not  be  created.  Martin  v.  St.  Louis, 
etc.,  Co.,  53    Ark.  250,   13  S.  W.  Rep. 

"It  i^  not,"  said  the  court,  "the 


office  of  an  amendment  to  create  or 
originate  something  new,  but  only  to 
perfect  that  which  is  imperfectly  done." 
See,  also,  Cox  v.  Gress,  51  Ark.  224,  231, 
11  S.  W  Rep.  416.  It  is  rightly  held  in 
Morgan  v.  Hays,  91  Ind.  132,  that  a  bill 
of  exceptions  may  be  amended  on  due 
application  to  the  trial  court  where 
there  is  something  to  amend  by,  but  this 
does  not  authorize  the  conclusion  that 
there  may  be  an  entirely  new  bill  cre- 
ated by  the  trial  court.  Omitted  evi- 
dence may  be  supplied.  Jeffersonville, 
etc.,  Co.  v.  Bowen,  49  Ind.  154.  The 
general  statement  in  Marley  v.  Horna- 
day,  69  Ind.  106,  which  seems  to  indi- 
cate that  an  entirely  new  bill  may  be 
framed  after  judgment  and  pending  an 
appeal  can  not  be  supported.  It  goes 
far  beyond  any  of  the  authorities  and 
is  opposed  by  principle. 

3  Garrison  v.  People,  6  Neb.  274; 
.Moorr  v.  Stale.  63  Ga.  165;  Adams  v. 
1 1 iu_; iii-  (Fla.),  i  So.  Rep.  321;  llydc 
v.  Curling,  10  Mo.  359;  Strange  v.  Ty- 
ler, 95  Ind.  395;  Bole  :'.  Newberger.  Si 
Intl.  274;  Gray  v .  Brignardello,  1  Wall. 
627;  Whitewell  v.  Emory,  3  Mich.  84, 
^i)  Am.  Dec.  220;  Smith  v.  Hood,  25 
Pa.  St.  218;  In  re  Limerick  Petitioner, 
18  Mo.  183. 


CORRECTING  RECORD   AND  TRANSCRIPT.  179 

§210.   The  Application  to  Correct  the  Trial  Court  Record — A 

nunc  pro  tunc  order  may  be  obtained  on  motion  in  the  proper 
case,  and  a  formal  complaint  is  not  required.1  If,  however,  a 
formal  complaint  or  petition  is  filed,  no  harm  is  done,  since 
the  form  of  the  pleading  is  of  no  importance  where  a  correct 
result  is  reached.2  But,  while  a  formal  complaint  or  petition  is 
not  required,  there  should  be  a  written  motion  specifying  with 
reasonable  certainty  the  relief  sought,  and  stating  the  grounds 
upon  which  the  motion  is  founded.3  The  sufficiency  of  a  mo- 
tion for  a  nunc  pro  tunc  entry  may,  as  it  has  been  held,  be 
questioned  by  a  motion  to  quash,  or  by  a  motion  to  dismiss.4 

§  211.  By  whom  the  Motion  may  be  made — A  motion  to  correct 
the  record  by  a  nunc  pro  tunc  entry  can  not  be  successfully 
made  by  one  who  is  a  stranger  to  the  record.  Such  a  motion 
can  only  be  prosecuted  by  a  party  to  the  record  or  by  a  privy 
in  blood,  or  a  legal  representative.  The  decisions  indicate  that 
a  mere  party  in  estate  can  not  have  the  judgment  or  decree 
corrected  in  any  case.5  It  may  well  be  doubted  whether  the 
general  rule  is  not  too  broadly  stated  in  some  of  the  decis- 
ions, since  it  seems  that  there   may  be  cases,  although  prob- 

1  Gray  v.  Robinson,  90  Ind.  527;  16;  Buck  v.  Havens,  40  Ind.  221.  It  is 
Sherman  v.  Nixon,  37  Ind.  153;  Hughes  difficult  to  understand  the  reasoning  in 
v.  Hinds,  69  Ind.  93;  Latta  v.  Griffith,  the  case  first  cited^  since  it  seems  to 
57  Ind.  329;  Urbanski  v.  Manns,  S7  treat  a  motion  for  a  nunc  pro  tunc  en- 
Ind.  585;  Miller  v.  Royce,  60  Ind.  1S9;  try  as  a  motion  to  set  aside  a  default. 
Goodwine  v.  Hendrick,  29  Ind.  3S3;  The  conclusion,  however,  is  correct,  as 
Jenkins  v.  Long,  23  Ind.  460.  it  must  be  true  that  if  the  motion  is  in- 

2  Gray  v.  Robinson,  90  Ind.  527;  sufficient  on  its  face  the  relief  sought 
Ilolcraft  v.  King,  25  Ind.  352.  can   not    be    awarded.     If  the    motion 

3  The  reporter's  note  in  Urbanski  v.  discloses  the  infirmity  there  is  no  rea- 
Manns,  S7  Ind.  585,  states  the  point  de-  son  for  proceeding  further. 

cided    too    broadly.     What  was    there  5  Runnels  V .  Kaylor,  95  Ind.  503,  cit- 

said  is  that  "special  pleadings  are  not  ing  Cassel  v.  Case,  14  Ind.  393;    Owen 

required."    The  meaning  is,  as  the  con-  v.  Cooper,  46  Ind.  524;    Rogers  v.  Ah- 

text  shows,  that  formal   pleadings  are  bott,  37   Ind.    13S;     Miller   v.   Kolb,  47 

not  necessary.  Ind.  220;    Lewis  v.  Owen,  64  Ind.  446; 

4  Douglass  v.  Keehn,  7S  Ind.  199,  Angle  v.  Speer,  66  Ind.  4SS;  Comers 
citing  Smith  v.  Noe,  30  Ind.  117;  Nord  v.  Mericles,  75  Ind.  443;  Keepfer  v. 
v,  Marty,  56  Ind.  531;    Lake  v.  Jones,  Force,  S6  Ind.  Si. 

49  Ind.  297,   Ratliff  v.  Baldwin,  29  Ind. 


180  APPELLATE   PROCEDURE. 

ably    rare    ones,  where   a   privy    in   estate    might    successfully 
prosecute  proceedings  to  correct  a  clerical  error. 

§  '212.  Notice  of  the  Motion — A  motion  for  a  nunc  fro  tunc 
order  made  after  the  close  of  the  term  requires  notice.  A  party 
is  under  no  duty  to  keep  watch  of  proceedings  after  the  close 
of  the  term.  The  notice  which  brings  him  into  court,  or  the 
proceedings  which  require  him  to  be  in  court  either  actually  or 
constructively,  spends  its  force  with  the  close  of  the  term  at 
which  a  final  judgment  or  decree  terminating  the  proceedings 
is  entered.  This  is  the  doctrine  of  the  cases  bearing  directly 
upon  a  motion  for  a  nunc  pro  tunc  order,1  and  it  is  also  the  doc- 
trine in  closely  analogous  cases.2  In  one  case  it  was  held  that 
four  davs'  notice  is  sufficient. * 

§  213.  Evidence  on  the  hearing  of  the  motion — It  is  declared  by 
our  court  and  by  other  courts  that  upon  a  motion  for  a  nunc 
pro  tunc  entry,  parol  evidence  is  competent.4  But  there  is  much 
confusion  in  the  decided  cases  and  it  is  not  easy  to  extract  a  rule 
from  them.  We  have,  however,  concluded  upon  an  examina- 
tion of  our  own  and  other  cases,  that  the  true  rule  is  that  while 
parol  evidence  is  competent  it  is  not  of  itself,  unaided  by  any 
note,  minute,  or  memorial,  sufficient  to  authorize  a  nunc  -pro 
tunc  order.5      It  may  be   competent   and   yet  insufficient.      It 

1  Smith  ?'.  Myers.  5  Blackf.  223;  Bales  *  Corwin  v.  Thomas,  83  Ind.  no; 
v.  Brown,  157  Ind.  2S2;  Hughes*.  Hinds,  Crews  v.  Ross,  44  Ind.  481;  Hobbs  v. 
69  Ind.  93;  Benhold  v.  Fox,  21  Minn.  Board,  103  Ind.  575;  Board  v.  Fahlor, 
51;  Hill  v.  Hoover,  5  Wis.  386;  Weed  114  Ind.  17^),  and  authorities  cited. 
v.  Weed,  25  Conn.  337;  Wallis  v.  Board  v.  Gruver,  115  Ind.  224. 
Thomas,  7  Vesey,  292 ;  Rockland  Water  3  Latta  O.Griffith,  57  Ind.  329.  As 
Co.  v.  Pillsbury,  60  Me.  420;  Wooster  to  the  effect  of  a  nunc  fro  tunc  entry 
v.  Glover,  37  Conn.  315,  317;  Wheeler  t\  see  Leonard  v.  Broughton,  120  Ind.  536. 
.  j  I  Texas,  660;  Martin  v.  Bank,  *  Mitchell  v.  Lincoln,  7SInd.  531 ;  Jen- 
20  Ark.  636;  Alexander  v.  Stewart,  23  kins  V.  Lon^,  23  Ind.  460;  Brownlee  v. 
Ark.  18;  Cook  v.  Wood,  24  111.  295;  Board,  101  Ind. 401;  Frink  v.  Frink,  43 
Swift  v.  Allen,  55  111.  303.  Amend-  N.  H.  508,  80  Am.  Dec.  189;  Rugg 
ments  before  a  final  judgment  fully  v.  Parker,  7  Gray,  172;  Jacobs  v.  Burg- 
terminating  the  case  may  be  made  wyn,  63  N.  C.  193;  Avdelotte  v.  Brit- 
without  notice.     McClellan  v.  Binklev,  tain,  29  Kan.  9S. 

7^  I  ml.  503;    Hurnside  v.  Ennis,  43  Ind.         5  Ellis  t.  Keller, 82  Ind.  524;  Conway 

411;   Spanagel  r.  Dellinger,  34  Cal.  476;  v.  Day,  92 Ind.  522.  See,  also,  cases  cited, 

Layman  v.  Gravbill.  14  Ind.  1G6.  ante,  "Entries  nunc  fro  time"  §  209. 


CORRECTING   RECORD   AND  TRANSCRIPT.  181 

would  certainly  violate  the  rule  laid  down  in  a  long  line  of 
cases  to  hold  that  parol  evidence  is  all  that  is  required.  There 
is  reason  for  holding  that  where  there  is  a  mistake  in  the  calcu- 
lation of  the  amount  parol  evidence  may  be  heard  to  aid  the 
record,1  but  it  does  not  follow  that  it  is  competent  to  make  a 
new,  independent  and  original  order  or  entry. 

§  214.  Appeal  from  ruling  on  the  Application  for  a  nunc  pro 
tone  entry — A  party  who  desires  to  challenge  the  correctness  of 
the  decision  of  the  court  upon  a  motion  for  a  nunc  -pro  tunc  or- 
der must  do  so  by  the  appropriate  proceeding.  He  may  appeal 
from  the  decision.2  As  there  is  a  remedy  by  appeal  there  can 
be  no  collateral  attack.  If  there  is  jurisdiction  of  the  subject 
and  no  effective  attack  the  ruling  will  not  be  disturbed.  A 
motion  for  a  new  trial  is  not  required,  as  a  motion  to  correct 
the  record  is  regarded  as  a  summary  proceeding,  in  which 
there  is,  in  the  strict  sense,  no  trial.3  An  exception  to  the  rul- 
ing on  the  motion  has  been  held,  in  several  cases,  to  be  all 
that  is  necessary  to  reserve  the  question.4 

§  215.  Presenting  the  ruling  on  Appeal — It  is  a  necessary  con- 
clusion from  the  doctrine  affirmed  by  many  cases  that  no 
formal  pleadings  are  necessary  in  proceedings  to  obtain  a  nunc 
■pro  tunc  entry  that  all  the  papers,  as  well  as  the  evidence, 
must  be  brought  into  the  record  by  a  bill  of  exceptions,  or,  in 
the  proper  case,  by  an  order  of  court.5  The  statements  of  the 
clerk  are  ineffective.  The  record  must  be  made  to  speak  in 
due  and  proper  form.6  The  record  must  show  that  the  appli- 
cation was  made  to  a  court  having  power  over  the  record,  since 
no  other  could  have  jurisdiction.7    An  attempt  by  a  court  other 

1  As  in  Sherman  v.  Nixon,  37   Ind.  Working,  93  Ind.  501;  Coulter  v.  Coul- 

153.  or  Mitchell  v.  Lincoln,  7S  Ind.  531.  ter,  Si  Ind.  542;    Beeber   v.  Bevan,  So 

'  Walker  v.  State,  102  Ind.  502.  Ind.  31. 

3  Blizzard  v.  Blizzard,  40  Ind.  344;  5  Ellis  v.  Keller,  82  Ind.  524;  Conway 
Walker  v.  State,  102  Ind.  502.  v.  Day,  79  Ind.  31S;    Chissom  v.  Bar- 

4  Blizzard   v.   Blizzard,   40   Ind.  344.  bour,  100  Ind.  1. 

Runnels  v.  Kajlor,  95  Ind.  503.   Citing        6  Ellis  v.  Keller,  82  Ind.  524. 
Jenkins  v.  Long,  23  Ind.    460;    Corwin         7  Wilcox  v.  Majors,  SS  Ind.  203. 
-'•    Thomas,    S3    Ind.    no;     Dukes    v. 


A  P I '  E L L A T E  PROCEDU R  E 

than  the  one  of  whose  record  an  amendment  is  sought  to  make 
a  nunc  fro  tunc  entry  or  order,  would  be  abortive. 

§  216.  Certiorari — If  the  orders  and  entries  are  correctly  re- 
corded below,  but  are  improperly  or  incorrectly  copied,  or 
transcribed,  the  remedy  is  to  apply  to  the  appellate  tribunal 
for  an  order  to  the  clerk  below  to  certify  the  amendments 
and  corrections  required  to  make  the  transcript  faithfully 
and  truly  exhibit  the  rulings,  entries  and  proceedings  as 
the  original  record  exhibits  them.  The  order  which  issues 
upon  such  a  motion,  or  application,  is  commonly  called  a  certi- 
orari} It  will  issue  to  compel  the  eradication  from  the  tran- 
script of  matters  that  do  not  belong  there,  as  well  as  to  bring 
into  the  transcript  matters  that  are  not  copied  into  it  which  do 
belong  there.  Where,  however,  improper  matter  appears  in  a 
transcript,  and  its  presence  is  revealed  by  a  bare  inspection  of 
the  record  without  the  aid  of  entries,  orders,  or  instruments  not 
there  appearing,  a  certiorari'^  not  required.  Thus  if  it  appears 
upon  the  face  of  the  record  that  a  bill  of  exceptions  has  not  been 
filed  in  time,  or  that  motions  not  properly  made  part  of  the  rec- 
ord are  incorporated  in  the  transcript,  there  is  no  necessity  for 
asking  a  certiorari,  nor  for  making  a  motion  to  expunge  the 
improper  matter  from  the  transcript.  All  that  need  be  done  is 
to  point  out  the  improper  matter  in  the  brief. 

v?  217.  Duty  of  party  to  apply  for  Certiorari — The  court  may, 
if  it  deems  proper  for  the  furtherance  of  justice,  direct  a  tran- 
script to  be  corrected,  or  original  papers  to  be  certified  up,2 
but  it  is  not  bound  to  do  so.  Primarily  the  duty  of  asking  and 
obtaining  a  certiorari  rests  upon  counsel  ;  the  court  may,  as  a 
matter  of  discretion,  make  the  necessary  order,  but  that  it  shall 
make  it  of  its  own  motion  can  not  be  insisted  upon  as  a  matter 

1  Phelps  v.  Osgood,  34  Ind.  150;  Sum-  2  Hart  v.  State.  26  Ind.  100;   State  v. 

nert>.  Goings,  74  Ind.  293;  Hall  v.  Dur-  Pierce.  14  Ind.  302:  Brown*.  Osborn, 

ham,  113  Ind.  327;   Du  Souchet  v .  Dut-  iBlackf.32;  Grover,  etc.,  Co.  v.  Barnes, 

.  113  Ind.  249;    Miller:1.  Shriner.  S7  49  Ind.  [36;  Jones:.  Van  Patten,  3  Ind. 

err.  Myers,  41  Ind.  543;  107;  Songer  v.  Walker,  1  Blackf.  251; 

United   State-  v.  Adams,  9  Wall.  661;  Gatlingt'. Newell,  12  Ind.  116;  Colerick 

Fowler   v.    Lindsey,  3   Dall.  411,  413:  v.  Hooper,  3  Ind.  316;  Walker  v.  State, 

Board,  etc.,  v.  Bond,  3  Col.  222.  102  Ind.  502. 


CORRECTING   RECORD   AND  TRANSCRIPT.  183 

of  right.1  Counsel  are  under  a  duty  to  examine  the  transcript, 
and  the  fault  is  theirs  if  they  do  not  take  steps  necessary  to  rec- 
tify errors  and  secure  amendments.  If  parties  suffer  judgment 
to  be  rendered  on  a  defective  transcript  it  will  be  as  effective 
as  if  the  transcript  had  been  amended.2 

§  218.  Who  may  obtain  a  Certiorari — Strangers  to  the  record 
can  not  obtain  an  order  to  amend  the  transcript.  A  party  to 
the  record  who  does  not  appeal  and  whose  interests  are  not  in- 
volved, can  not  have  a  certiorari.  In  order  to  entitle  an  appli- 
cant to  the  order  he  must  have  a  substantial  interest  that  may 
be  affected  by  the  judgment  on  appeal,  since  it  would  be  idle 
to  direct  an  amendment  upon  the  application  of  one  who  can 
neither  be  benefited  nor  harmed  by  the  decision.3 

§  219.  Time  of  making  Application — An  application  for  a  cer- 
tiorari may  be  made  after  the  submission  of  the  cause,  but  can 
not,4  of  course,  be  made  after  the  decision  on  appeal.5  But  it 
is  always  within  the  power  of  the  court  to  deny  the  application 
if  the  applicant  has  not  proceeded  with  reasonable  diligence. 
If  necessary  to  enable  a  party  who  has  acted  promptly  to  secure 
an  amendment  of  the  transcript  the  court  will  grant  an  order 
staying  proceedings/'  It  is  obvious  that  an  application  for  a  cer- 
tiorari in  cases  where  it  is  in  aid  of  appellate  jurisdiction  can 
not,  as  a  general  rule,  be  made  until  the  transcript  is  filed  in  the 
appellate  tribunal.7 

1  State  v.  Hallowell,  91  Ind.  376.     In  6  Doe  v.  Owen.  2  Blackf.  452. 
Kesler  v.  Myers,  41    Ind.    543,    555,  it  T  Mullary  v.  Caskaden,  Minor  (Ala.) 

was   said:     "We  could   not.  with  pro-  20.     We  are  not,  it  is  barely  necessary 

priety,  make  any  suggestion  to  the  par-  to  say,  here  speaking  of  a  proceeding  to 

ties  or  counsel    as   to  the   condition  of  compel   a  trial  court  to  make  a  proper 

the  record.  and  rightful  record,  but  of  a  proceeding 

2  Davis  v.  Jenkins,  14 Ind.  572;  Greg-  to  compel  a  ministerial  officer  to  cor- 
ory  v.  Slaughter,  19  Ind.  342.  rectly    transcribe   or   certify    a   record 

3  State  v.  Chastain,  104  »N.  C.  900,  which  has  been  duly  made  in  the  trial 
905,  10  S.  E.  Rep.  519.  court.     There   is    an    important  differ- 

4  Clark  v.  Wright,  67  Ind.  224;  Penn-  ence  between  requiring  a  court  to  make 
sylvania  Co.  v.  Holderman,  69  Ind.  iS;  a  record  and  compelling  the  clerk  to 
post,  §  221,  n.  3.  copy  and  certify  it  as  made. 

s  Ante,    "Amendments   not    allowed 
after  decision  on  appeal."     $  20S. 


134  APPELLATE  PROCEDURE. 

§  220.  Requisites  of  the  Application  for  a  Certiorari — The  safe 
course  is  to  verify  the  motion  for  a  certiorari,  since  it  is  diffi- 
cult to  conceive  of  a  case  in  which  a  certiorari  is  necessary, 
wherein  an  unverified  motion  would  be  sufficient.  As  we 
have  seen,  where  an  inspection  of  the  record  discloses  the  pres- 
ence of  improper  matter  which  may  be  disregarded  without 
looking  beyond  the  face  of  the  record,  no  amendment  is  re- 
quired, so  that  it  is  almost  always  necessary  to  show  some  mat- 
ter not  apparent  on  the  face  of  the  record  in  order  to  obtain  a 
certiorari.  Where  there  is  no  defect  or  imperfection  apparent 
on  the  face  of  the  record  the  presumption  is  that  it  is  com- 
plete and  perfect,'  so  that  it  is  incumbent  upon  one  who  affirms 
that  it  is  not  to  show  wherein  it  is  defective  or  imperfect.  The 
motion  or  application  must  "  clearly  designate  the  parts  of  the 
record  asserted  to  be  defective,  improperly  omitted,  or  improp- 
erly incorporated  in  the  transcript.''2 

§221.  Notice  of  the  Application — After  the  cause  has  been 
submitted  notice  of  the  motion  must  be  given,  but  notice  need 
not  be  given  where  the  motion  is  filed  before  the  cause  is  sub- 
mitted.3 The  notice  should  specify  the  general  character  of 
the  motion,  and,  in  strictness,  should  be  served  ten  days  prior 
to  the  time  fixed  for  the  hearing.4  It  has  been  held  that  the 
court  will  hear  the  motion  at  "  any  time  after  the  opposite  party 
or  his  attorney  has  had  ten  days'  notice  in  writing,  though  a 
day  prior  to  the  expiration  of  such  period  has  been  designated 
in  the  notice."  5 

§  222.  Submitting  the  Motion  for  Hearing— The  motion,  with 
accompanying  affidavits,  is  submitted  to  the  court  by  the  clerk, 

1  Von  Glahan  v.  Von  Glahan,  40  111.         5  Durbin    v.    Haines,    99    Ind.    463. 

73;    Williams   v.  Qirin,  7  Cowen,  539;  This  doctrine  is  a  reasonable  one,  for, 

Mullary  v.  Caskaken  Minor  (Ala.),  20.  if  the  notice  is  given  for  the  requisite 

5  Rule  XXXII.     The  rule  is  simply  length  of  time,  a  new  notice  ought  not 

declaratory  of  a  general  principle,  and  to  be  required,  nor  ought  the  party  to 

should  be  closely  followed.  be  prejudiced  by  the  delay  of  the  court 

3  Rule  XXXII;  Clark  v.  Wright,  67  or  by  operation  of  law.  If  the  adverse 
End.  224;  Pennsylvania  Co.  v.  Holder-  party  has  notice  for  the  length  of  time 
man,  69  Ind.  iS;  Figart  v.  Halderman,  required  by  the  rules  of  practice  he  can 
59  Ind.  424.  have  no  reason  to  complain. 

4  Rule  XIV. 


CORRECTING  RECORD   AND  TRANSCRIPT.  185 

and  is  acted  upon  without  oral  argument.  It  is  proper,  and, 
indeed,  often  necessary,  for  parties  to  file  briefs  upon  the 
motion,  but  oral  arguments  are  not  heard.  Counter  affidavits 
are  admissible  but  not  verbal  testimony.1  If  it  appears  that  the 
defect  sought  to  be  remedied  is  entirely  immaterial,  exerting  no 
influence  upon  the  controversy,  no  case  is  made  for  a  certiorari. 

1  Rule  XXXIII. 


CHAPTER  XI. 


A  < ,  R  E  E  D    CASE 


<j>  223.    Agreed  cases — Jurisdiction. 

224.  Agreed  statement  of  facts  does 

not  make  an  agreed  case. 

225.  The  distinctive    features    of  an 

agreed  case. 

226.  No    presumptions    indulged    in 

favor  of  the  judgment  of  the 
trial  court. 


§  227.   The  affidavit. 

22S.    Requisites   of  the   statement  of. 
facts. 

229.  Office  of  the  statement  of  facts. 

230.  Effect  of  the  statement. 

231.  Mistake    in    the    statement    of 

facts. 

232.  The  record. 


§  223.  Agreed  Cases — Jurisdiction — The  statute  allows  parties 
to  make  and  present  a  case  by  agreement,  but,  to  prevent  a 
violation  of  the  rule  interdicting  the  submission  of  feigned  con- 
troversies and  to  insure  good  faith,1  it  requires  that  designated 
acts  shall  be  done  by  the  parties.  There  must  be  a  real  con- 
troversy between  actual  parties,  but  the  facts  of  the  controversy 
mav  be  agreed  upon  by  the  parties.  The  material  acts  required 
by  the  statute  can  not  be  dispensed  with,  for  they  are  regarded 
as  jurisdictional.  Thus  it  is  held  that  an  affidavit  is  essential 
to  jurisdiction,2  but  the  affidavit  of  one  of  the  parties  is  suffi- 


1  The  case  of  Smith  v.  Junction, 
etc..  Co.,  29  Ind.  546.  strikingly  illus- 
trates the  statement  of  the  text.  In  that 
case  the  court  received  affidavits  to 
show  that  the  case  was  feigned  and  one 
of  the  parties  fictitious,  and  quoted  with 
approval  from  the  opinion  in  Lord  v. 
Veazie.  S  How.  (U.  S.)  251,  254.  the  fol- 
lowing: "And  any  attempt  by  a  mere 
colorable  dispute  to  obtain  the  opinion  of 
the  court  upon  a  question  of  law,  which 
a  party  desires  to  know  for  his  own  in- 
•  or  his  own  purposes,  where  there 
i-  no  real  and  substantial  controversy 
between  those  who  appear  as  adverse 
parties  to  the  suil  is  an  abuse  which 
courts    of   justice   have   always    repre- 


hended and  treated  as  a  punishable  con- 
tempt of  court."  The  following  ca 
were  also  cited:  Brewington  v.  Lowe, 
1  Ind.  21;  Hotchkiss  v.  Jones,  4  Ind. 
260;  Cleveland  v.  Chamberlain,  1  Black 
(U.  S. L419. 

2  Sharpe  v.  Sharpe,  27  Ind.  507,  508. 
In  the  case  cited  the  court  said,  ''No 
pleadings  are  required  in  such  cases, 
but  the  affidavit  referred  to  is  necessary 
to  give  the  court  jurisdiction  of  the 
case,  and  the  power  to  hear  and  deter- 
mine the  question  involved,  and  render 
judgment  without  pleadings."  Speak- 
in-  of  this  ruling  it  was  said  in  Man- 
chester v,  Dodge,  57  Ind.  584,  "And, 
indeed,  it  could   not  well  be  held  other- 


(186) 


AGREED  CASE. 


cient.1  As  jurisdiction  depends  upon  the  affidavit  it  is  indis- 
pensably necessary  that  it  should  form  part  of  the  record,  for 
its  absence  will  be  fatal  to  the  appeal.2 

§  224.  Agreed  statement  of  Facts  does  not  make  an  Agreed  (asr  — 
There  is  a  material  difference  between  an  agreed  case  and  a  < 
where  there  is  simply  an  agreement  or  stipulation  as  to  the 
facts.1  The  agreement  as  to  the  facts  does  not  make  an  agreed 
case  under  the  statute.  This  difference  between  the  two  cases 
is  radical  and  leads  to  important  results.  It  is  only  necessary  to 
here  note  a  few  of  the  important  differences  ;  one  is  that  plead- 
ings are  required  in  ordinary  cases  but  not  in  agreed  cases  ;'  a 
motion  for  a  new  trial  is  not  required  in  agreed  cases/'  but  is 
required  in  cases  where  there  is  simply  an  agreed  statement  of 
facts.6  Where  parties  act  upon  the  theory  in  the  trial  court  that 
the  case  is  an  agreed  case  they  will  be  held  to  that  theory  on 
appeal,    although   the   case  may  not  come   within  the  statute." 


wise."  These  cases  are  approved  in 
Godfrey  v.  Wilson,  70  Ind.  50,  58.  The 
absence  of  the  required  affidavit  was  de- 
clared fatal  in  Myers  v.  Lawyer,  99  Ind. 
237.  The  Supreme  Court  of  Wisconsin 
in  Plainfield  v.  Plainfield,  67  Wis.  525, 
declared  that  "The  required  affidavit  is 
essential  to  the  jurisdiction  of  the  court 
to  render  a  judgment  on  the  matter 
submitted."  See,  also,  to  same  effect, 
Donald  v.  St.  Louis,  etc.,  Co.,  52  Iowa, 
411. 

1  Booth  v.  Cottingham,  126  Ind.  431. 

2  The  statement  of  the  clerk  that  an 
affidavit  such  as  the  statute  requires 
was  tiled  will  not  supply  the  place  of 
the  affidavit,  for  that  must  appear  in 
the  record.     Myers  v.  Lawyer,  99  Ind. 

3  Witz  v.  Dale  (Ind.),  27  N.  E.  Rep. 
498;  Zeller  v.  City  of  Crawfordsville, 
90  Ind.  262;  Pennsylvania  Co.  v.  Nib- 
lack,  99  Ind.  149;  Citizens  Insur- 
ance Co.  v.  Harris.  10S  Ind.  392,9  N. 
E.  Rep.  299;  Western  Union  Tel.  Co. 
v.  Frank.  85  Ind.  480;  Slessman  v. 
Crozier,8o  Ind.  4S7;   Downey  v.  Wash- 


burn, 79  Ind.  242;   Openheim   v.  Pitt- 
burgh,  etc.,  Co.,  85  Ind.  471.  472;  Lo 
v.  Moore,  83  Ind.  112;   Martin  v.  Mar 
tin,  74   Ind.  207;     Fisher  v.  Purdue.  4s 
Ind.  22?,\    Carlton  v.  Cummins,  51  Ind. 
478.     In    Fisher  v.   Purdue,   supra,  thi 
court   misapplies   the   term   "statement 
of  facts,"  but  this  error  does  not  invali- 
date the  conclusion  reached.     Thatcher 
v.  Ireland.  77    Ind.  4S6,  is  to  be  under- 
stood as  an  agreed  case.     An  agreement 
as  to  the  facts  embodied  in  a  statement 
of  facts  is   no   more  than   a    stipulation 
as  to  what  the  evidence  would  establish. 
Pennsylvania  Co.  v.  Niblack,  supra. 

4  Warrick,  etc.,  Co.  v.  Hougland 
Ind.  1 15. 

5  Lofton  v.  Moore,  S3  Ind.  112. 

6  McDonald  v.  Stader,  10  Ind.    171. 
State  v.  Swarts  ct  a/.,  9  Ind.  221. 

7  Booth  v.  Cottingham.  126  Ind.  431, 
citing  Carver   v.   Carver,  97   Ind 

516;  Louisville,  etc.,  Co.  v.  Wood.  113 
Ind.  544.  564;  Brink  :'.  Reid,  122  Ind. 
2^7.  In  the  case  first  cited  it  was  said 
by  the  court:  "Where  parties  agree 
upon  a  theory  we  can  not  with  propri- 


188  APPELLATE   PROCEDURE. 

But  this  rule  would  not,  of  course,  prevail  against  a  party  who 
had  resisted  the  theory  in  the  trial  court. 

§  225.  The  distinctive  features  of  an  Agreed  Case — An  agreed 
case  is  one  wherein  there  is  neither  process  nor  pleadings,  and 
wherein  there  are  no  controverted  questions  of  fact  nor,  indeed, 
anv  questions  except  questions  of  law  arising  on  the  agreed 
statement.  The  court  looks  to  the  agreed  statement  required 
bv  the  statute,  and  if  that  fails  to  show  a  right  of  recovery  in 
the  plaintiff  none  can  be  adjudged.'  A  motion  for  a  new  trial 
is  not  required  as  we  have  elsewhere  more  fully  shown,2  but  an 
exception  to  the  finding  is  necessary.3  If  pleadings  are  filed 
they  will  be  disregarded,1  and  from  this  it  necessarily  results 
that  no  errors  in  rulings  on  the  pleadings  can  be  of  the  slightest 
avail. 

.^  226.  No  Presumptions  indulged  in  favor  of  the  Judgment  of  the 
Trial  Court — The  rule  in  agreed  cases  upon  the  subject  of  pre- 
sumptions in  favor  of  the  rulings  of  the  trial  court  is  radically 
different  from  that  which  prevails  in  other  cases.  It  has  long 
been  settled  that  no  presumptions  will  be  made  in  favor  of  the 
trial  court  in  agreed  cases  under  the  statute.5     The  party  who 

etv  deny  their  agreement  except,  per-  land,  90  Ind.  115,  117.  "In  such 
haps,  where  it  is  plainly  necessary  to  a  case."  said  the  court  in  the  case  cited, 
do  so  in  order  to  prevent  manifest  in-  "there  must  be  an  exception  to  the  de- 
justice."  cision    of   the    court    upon    the   agreed 

1  Gregory  :\  Perdue.  29  Ind.  66.  "It  statement  of  facts  in  order  to  reserve 
must  appear."  it  was  said  in  the  case  any  question  for  this  court."  The  cases 
cited,  "from  such  statement  of  facts  of  Fisher  :•.  Purdue.  4S  Ind.  323.  and 
that  there  exists  a  cause  of  action  in  Lofton  :•.  Moore.  s  3  Ind.  1 1  2.  were  cited 
favor  of  one  of  the  parties  against  the  in  support  of  the  proposition  stated. 
other."  *  Day  v.  Day.  100  Ind.  460.  461;  Keel- 

2  Witz  v.  Dale  (Ind.),  27  N.  E.  Rep.  ine  v.  Council  Bluffs,  62  Iowa,  450. 
49S.     In  State  v.  Board, 66  Ind.  216,  the  5  Indianapolis,  etc..  Co.  v.  Kinney.  S 
rule  and  the  reason  sustaining  it  were  Ind.    402:     Ilannum    v.    State,  3S   Ind. 
thus    stated:     "It    is   not   necessary  to  32;    Warrick,  etc..  Co.  v.  Ilougland,  90 
move  for  a   new  trial,  because  the  facts  Ind.    115,    117:    Day    v.  Day,    100    Ind. 

A  to  would  necessarily  be  the  same  460.  461.     It  is  to  be  said  of  Hannum  r>. 

on  a  second  trial  as  they  were  upon  the  State,  supra,  that  the  court   and  coun- 

first,    and    nothing    would    'herein-    be  sel  seem  to  have  erroneously  treated  the 

gained.     Fisher  v.  Purdue.  48  Ind.  t,2],."  case  as  an  agreed  case  under  the  statute. 

3  The    Warrick,    etc..    Co.    v.    Houg-  It  certainlv  was  not  such  a  case. 


AGREED   LAM: 


189 


has  the  burden  must,  therefore,  show  clearly  and  full)'  such  facts 
as  entitle  him  to  relief,  or  he  will  fail.  The  facts  must  appear 
in  the  agreed  statement  required  by  the  statute  for  they  can  not 
be  properly  exhibited  in  any  other  mode. 

§  227.  The  Affidavit — The  importance  of  the  affidavit  is  such 
as  to  make  it  necessary  that  it  should  in  all  material  particulars 
conform  to  the  statute.  It  would  defeat  a  principal  purpose  of 
the  statute1  to  permit  cases  to  be  submitted  without  an  affidavit 
fully  and  clearly  stating  the  facts  which  the  law  says  the  affi- 
davit shall  contain.  It  would  also  contravene  a  sound  rule  of 
public  policy2  to  permit  an  agreed  case  to  be  filed  without  the 
affidavit  prescribed,  so  that  there  is  ample  reason  for  holding 
the  language  of  the  statute  to  be  mandatory.  The  affidavit 
must,  as  it  has  been  held — and  held  upon  substantial  reasons — 
be  made  by  one  of  the  parties.3     While  it  is  generally  true  that 


1  The  affidavit  is  essential  to  jurisdic- 
tion.    Ante,  §  223. 

2  In  the  case  of  the  Newark,  etc.,  Co. 
v.  Perry  Co.,  30  Ohio  St.  120,  the 
court  said,  in  speaking  of  the  statute 
providing  for  agreed  cases,  that,  "It  is 
ohvious  from  a  reading  of  these  pro- 
visions, that  it  was  intended  to  provide 
for  the  submission  of  a  real  case  between 
the  parties  in  which  judgment  settling 
the  controversy  could  be  rendered, 
and  which  would  be  a  bar  to  a  future 
action,  for  the  same  subject-matter  and 
afford  the  ordinary  relief  obtained  by  a 
final  judgment.  It  was  not  intended  to 
provide  for  the  submission  of  questions 
ot  law,  for  the  opinion  of  the  court, 
merely  without  a  case  in  which  a  judg- 
ment might  be  rendered  in  accordance 
with  its  opinion  legally  determining  the 
rights  of  the  parties.  It  does  not  au- 
thorize the  submission  of  questions  in 
rases  that  are  merely  anticipated,  nor 
of  cases  where  the  facts  are  disputed. 
Nor  was  such  submission  intended  to 
be  merely  advisory  as  to  the  rights  of 
the  parties.  It  is  rather  a  substitute  for 
an  action,  and  its  effect  upon  the  rights 


of  the  parties  is  the  same  as  that  of  an 
action.  It  is  a  short  and  convenient 
mode  for  the  final  adjudication  of  the 
case  submitted." 

3  In  denying  the  right  of  an  attorney 
to  make  the  affidavit  the  Court  of  Ap- 
peals of  New  York  in  Bloomfield  v. 
Ketcham,  5  N.  V.  Civil  Proc.  Rep.  407. 
(S.C.95  N.Y.657)said:  "To  avoid  col- 
lusive or  fictitious  submissions  the  code 
provides  (§  i279)thattoentitle  partiesto 
submit  a  controversy,  the  case  must  be 
accompanied  with  the  affidavit  of  one  of 
the  parties  to  the  effect  that  the  contro- 
versy is  real  and  that  the  submission  is 
made  in  good  faith  for  the  purpose  of  de- 
termining the  rights  of  the  parties.  A  n 
attempt  has  been  made  in  the  present 
case  to  comply  with  that  provision,  but 
the  affidavit,  instead  of  being  made  by 
one  of  the  parties,  is  made  by  an  attor- 
ney in  fact  of  the  parties,  who  swears 
that  the  submission  is  made  in  good 
faith  and  that  the  controversy  is  real, 
to  the  best  of  his  knowledge,  informa- 
tion and  belief.  There  is  no  authority 
in  the  code  for  making  such  an  affidavit 
by  an  attorney,  and  as  the  facts  required 


190  APPELLATE   PROCEDURE. 

an  attorney  may  make  an  affidavit  in  cases  where  one  is  re- 
quired, there  are,  nevertheless,  cases  where  it  must  be  made  by 
a  party,  as,  for  instance,  where  the  facts  are  peculiarly  within 
the  knowledge  of  the  parties,  and  it  is  necessary  that  the  sworn 
statement  should  come  from  one  who  can  speak  from  his  own 
knowledge.  This  is  especially  true  in  agreed  cases  where  in- 
tention and  positive  knowledge  are  important  factors.  But  it 
is  evident  that  the  general  rule  stated  is  not  without  exceptions. 
In  cases  of  corporations,  as  for  instance  the  State,1  the  rule  can 
not  be  given  effect,  and  there  are  doubtless  other  exceptions  to 
the  rule. 

§  228.  Requisites  of  the  Statement  of  Facts — The  statement  of 
facts  must  be  so  full  and  definite  that  the  court  can  declare  the 
law  of  the  case,  and  by  the  appropriate  judgment  or  decree 
adjudicate  and  settle  the  controversy  between  the  parties.  The 
inferential  and  ultimate  facts,  and  not  mere  evidence  of  the 
facts,  must  be  stated.-  The  court  will  not  assume  to  make  any 
other  than  necessary  and  legal  inferences  from  the  facts.3  Mat- 
ters of  law  should  not  be  stated,4  but  the  facts  must  so  appear 
as  that  nothing  remains  for  the  court  but  to  decide  the  questions 
of  law  arising  on  the  facts, 5  since  the  court  will  not  determine 
any  question  of  fact  nor  give  heed  to  mere  matters  of  evidence. 
Not  only  must  the  facts  be  so  stated  as  to  enable  the  court  to 
decide  the  questions  of  law,  but  they  must  be  such  facts  as  con- 
stitute a  case  upon  which  a  final  judgment  or  decree  can  be 
rendered.''  The  facts,  as  stated,  must  show  a  present  and  act- 
to  be  stated. are  peculiarly  within  the  Union  National  Rank  v.  Kupper,  63  N. 
knowledge  of  tin-  parties,  we  think  the  Y.  617;  Clark  v.  Wise,  46  N.  Y.  612. 
affidavit  should  be  made  by  one  of  them,  4  Ford  --.City  of  Cameron,  19  Mo. 
and  that  the  affidavil  of  an  attorney  is     App.  467. 

dompliance  with  the  statute,  5  Smith  v.  Cudworth,  24  Pick.  196; 
where  there  is  a  material  person  a  Clark  v.  Wise.  40  N.Y.612;  Neilson 
party  to  the  proceeding,  by  whom  it  v.  Commercial  Mutual  Ins.  Co.,  3 
may  be  made."  Duer,  455.     See  Wood  v.  Squires.  60 

1  State  v.  Coghlen,  86  Ind.  404.  N.  Y.    191;     Dickinson   v.  Dickey,  76 

2  Powers  v.  Provident  Institution.  122      N.  Y.  002. 

Mass.   J43;     Mayhew  v.  Dunham,  13S        "Speaking   of  the    provision   of  the 

M  iss.  584.  code  respecting  agreed  cases,  the  court 

v.    Irwin,    55    NY.    4S6;     said,  in  Williams  v.  City  of  Rochester, 


AGREED    CASE. 


11)1 


ual  controversy  within  the  jurisdiction  of  the  court,  for  the  court 
can  give  no  decision  upon  questions  agreed  upon  and  submitted 
where  it  does  not  properly  appear  that  there  is  an  existing  and 
actual  dispute  which  it  requires  a  judicial  decision  to  settle.1 

§  229.  Office  of  the  Statement  of  Facts— The  statement  of  facts, 
when  properly  prepared,  submits  an  entire  controversy  to  the 
court  as  fully  as  does  a  special  verdict.-  Its  office  is  to  state 
all  the  ultimate  facts.  As  some  of  the  adjudged  cases  say,  "it 
stands  as  a  substitute  for  a  special  verdict,"  and  is  governed  by 
substantially  the  same  leading  rules  as  those  framed  for  the 
government  of  special  verdicts  returned  by  a  jury  in  a  civil 
action.  This  is  obviously  true,  for  the  statement  of  facts  in  an 
agreed  case  is  essentially  the  same  thing  as  a  case  stated  at 
common  law.3     It  is,  therefore,  proper  to  look  for  guidance  and 


2  Lans.  169,  that:  "  Its  object  is  to  en- 
able parties,  without  resort  to  legal  pro- 
cess or  formal  pleadings,  to  submit  to 
the  court  for  its  adjudication,  some  al- 
leged cause  of  action  or  claim  for  relief. 
The  submission  must  be  for  an  adjudi- 
cation. A  case  must  be  presented  on 
which  a  judgment  may  be  rendered  in 
favor  of  one  and  against  the  other  of 
the  parties  to  the  submission."  To  the 
same  effect  are  Cunard  Steamship  Co. 
v.  Voorhis,  104  N.  Y.  525,  and  Day  v. 
Day,  100  Ind.  460,  462. 

1  In  the  case  of  Hobart  College 
v.  Fitzhugh,  27  N.  Y.  130,  questions 
were  agreed  upon  and  submitted,  and 
it  was  held  that  there  was  no  case  be- 
fore the  court.  In  the  course  of  the 
opinion  it  was  said:  "  The  difficulty  is 
that  there  was  no  controversy  between 
the  parties  that  might  then  be  the  sub- 
ject of  a  civil  action  in  which  a  judg- 
ment could  be  rendered.  No  judgment 
could  be  rendered  other  than  a  judg- 
ment for  the  defendant,  dismissing  the 
controversy  or  action,  or  rather  case." 
It  is  true  of  an  agreed  case,  as  of  all 
other  suits  and  actions,  that  there  can 
be  no  appeal  to  a  judicial  tribunal  un- 


less the  judgment  of  a  court  is  required 
to  enforce  the  existing  legal  or  equi- 
table rights  of  one  of  the  parties,  and 
thus  put  an  end  to  the  controversy  by 
a  final  adjudication. 

2  Heni  v.  Grand,  etc.,  Co.,  59  Mo. 
5S1;  Gage  v.  Gates,  62  Mo.  412;  Shaw 
v.  Padley,  64  Mo.  519;  Hughes  v. 
Moore,  17  Mo.  App.  14S;  Moore  v. 
Henry,  iS  Mo.  App.  35;  Ford  v.  Cam- 
eron, 19  Mo.  App.  467;  Field  v.  Chi- 
cago, etc.,  Co.,  21  Mo.  App.  600. 

3  Mr.  Tidd  speaks  of  what  is  often 
called  a  case  stated  as  "a  special  case." 
He  says:  "  In  a  special  case  as  in  a  spe- 
cial verdict,  the  facts  proved  at  the  trial 
ought  to  be  stated  and  not  merely  the 
evidence  of  facts,  and  it  is  drawn  and 
settled  in  like  manner  by  counsel."  lie 
also  says:  "A  special  case  was  stated 
for  the  opinion  of  the  court  and  it  ap- 
pearing that  the  greater  part  of  the 
statement  was  fictitious,  the  court  fined 
the  attorney  for  his  misconduct."  2 
Tidd's  Practice  (4th  Am.  ed.),  top  p. 
S9S.  In  another  work  it  is  said:  "A 
case  stated  is  a  substitute  for  a  general 
verdict,  and  the  same  general  rules  ap- 
ply to  both."   1  Troubat  &  Haley's  Prac- 


192 


APPELLATE   PROCEDURE. 


information  to  the  common  law  rules  upon  the  subject  of  a  case 
stated.1 

§  '230.  Effect  of  the  Statement — The  agreed  statement  excludes 
all  other  questions  except  such  as  arise  upon  the  facts  exhibited. 
If  the  parties  agree  to  a  statement  which  excludes  the  benefit 
of  a  defense  the  defense  is  lost.  Thus,  if  parties  agree  as  to 
the  facts  they  can  not  be  heard  to  aver  that  their  adversaries 
were  estopped  to  make  the  facts  available.2  But  this  rule  can 
not  apply  where  the  facts  themselves  plainly  establish  an  estop- 
pel and  are  so  stated  as  to  make  it  appear  that  the  estoppel  is 
relied  upon  or  is  not  waived.  As  the  chief  object  of  an  agreed 
statement  of  facts  is  to  obtain  a  final  judgment  settling  the  con- 
troversy it  must  necessarily  follow  that  the  judgment  duly  pro- 
nounced is  a  conclusive  adjudication.  It  further  follows  that 
the  appellate  tribunal  may  so  frame  its  judgment  as  to  justly 
declare  the  law  upon  the  agreed  facts.3 

§  231.  Mistake  in  the  statement  of  Facts — It  has  been  held  that 
a  mistake  in  the  statement  of  facts  filed  in  an  agreed  case  may 
be  corrected  upon  proper  application.4     The  doctrine  declared 


tice,  409,  §  733.  See,  generally,  White- 
sides  V.  Russell,  S  Watts  &  S.  44;  Berks 
County  v.  Jones,  21  Pa.  St.  413;  Da 
Costa  v.  Guien,  7  Sergt.  &  R.  462; 
Holmes  V.  Wallace,  46  Pa.  St.  266; 
Lippincott  v.  Ledyard,  8  Phila.  18; 
Parker  v.  Urie,  21  Pa.  St.  305;  Diehl  v. 
[hrie,  3  Whart.  (Pa.)  143;  Berks  County 
Pile,  iS  Pa.  St.  493;  Philadelphia, 
Co.  v.  Waterman,  54  Pa.  St.  337; 
James  v.  Mc Williams,  6  Munf.  (Ya.) 
501. 

1  We  here  confine  our  remarks  solely 
to  that  nart  of  an  agreed  case  commonly 
called  the  statement  of  the  case,  or  the 
menl  of  the  facts,  inasmuch  as  the 
other  elements  of  an  agreed  case  are 
principally  statutory. 

1  l'.nston  v.  Tileston,  11  Mass.  467; 
Wheelock  v.  Henshaw,  19  Pick.  341. 

3  Farmers  Bank  v.  Spring.  11  Md. 
3S9;   Simpers  v.  Simpers.    15    Md.  160; 


Phelps  v.  Phelps,  17  Md.  120;  People's 
Bank  v.  Shyrock,  4S  Md.  427;  Howard 
v.  Carpenter,  22  Md.  249,  258.  259;  Mc- 
Afee v.  Reynolds  (Ind.),28  N.  E.  Rep. 
423.  The  purpose  of  the  parties  in  agree - 
ing  to  the  tacts  is  to  leave  only  questions 
of  law  for  decision,  and  the  effect  of  their 
agreement  is  to  forever  settle  all  con- 
troversy as  to  the  facts,  while  the  effect 
of  the  judgment  of  the  court  is  to  end 
all  dispute  as  to  the  law.  It  is  evident, 
therefore,  that  it  is  the  duty  of  the  ap- 
pellate tribunal  to  direct  the  proper 
specific  judgment,  where  such  direc- 
tions are  appropriate,  leaving  nothing 
for  the  trial  court  to  do  but  give  effect 
to  the  mandate. 

4  State  v.  Coghlen,  86  Ind.  404,  413. 
In  support  of  its  ruling  the  court  cited, 
Jenkins  v.  Long,  23  Ind.  460:  Miller  V. 
Royce.  60  Ind.  189;  Reiley  v.  Burton, 
71    Ind.    11S;    Mitchell   v.    Lincoln,   7S 


AGREED    CASE.  193 

in  the  case  referred  to  is  one  to  be  cautiously  applied,  and  re- 
quires limitation  rather  than  expansion.  Where  parties  delib- 
erately and  solemnly  agree  upon  facts,  embody  them  in  a  state- 
ment for  the  purpose  of  obtaining  the  judgment  of  a  court  upon 
them,  and  verify  the  statement  by  oath,  an  unusually  clear  and 
strong  showing  of  a  mistake  in  the  statement  is  necessary  to 
authorize  the  court  to  attempt  to  rectify  it.  Not  only  should  it 
be  shown  that  a  material  mistake  was  made,  but  it  should  also 
be  shown  that  the  party  was  not  in  fault.  Any  other  rule  would 
open  the  door  to  great  abuses  and  enable  parties  to  impose  upon 
the  courts.1 

§  232.  The  Record — The  code  evidently  contemplates  that  the 
record  shall  be  a  brief  one,  and  that  no  bill  of  exceptions  shall 
be  required  to  exhibit  the  statement  of  facts.  It  declares  that 
the  "statement  of  the  case,  the  submission  and  the  judgment 
shall  constitute  the  record."2  The  decisions  indicate  very  clearly 
that  no  bill  of  exceptions  is  required  to  exhibit  the  facts.3  The 
court  long  since  engrafted  upon  the  statute  the  requirement  that 
the  finding  shall  be  excepted  to,  but  how  this  exception  shall 
be  shown  does  not  seem  to  have  been  directly  decided.  We 
venture  to  say  that,  in  view  of  the  evident  purpose  of  the  statute 
to  make  the  record  brief  and  to  place  the  decision  entirely  and 
solely  upon  the  facts  embodied  in  the  statement,  there  is  no 
necessity  for  a  bill  of  exceptions,  but  that  it  is  sufficient  to  take 
the  exception  and  cause  it  to  be  entered  of  record.4  The  ex- 
press provision  of  the  statute  (under  the  familiar  rule,  that  the 

Ind.  531.     But  the  cases   cited  by   the  2  R.  S.,  §  554. 

court  are  not  true  types  of  the  case  they  '  3  Martin  v.  Martin.  74  Ind.  207,  20S; 

arc  adduced  to  support.     The  principal  Citizens  Insurance   Co.  v.  Harris,   10S 

ca^c  must,  as  we  think,  be  regarded  as  Ind.  392. 

an  unusual   one,  and   the  rule  asserted  4  We   can   not  avoid   the  conclusion 

one  that  can  not  be  successfully  invoked  that  in  holding  that  an  exception  is  re- 

except   in   the   strongest   and    clearest  quired  the  court  has   added  a  substan 

cases    of    excusable    and    unavoidable  tive  provision  to  the  statute.     We  are, 

mistake.  at  all  events,  convinced  that  the  court 

1  It  is,  indeed,  doubtful  whether  the  ought   not   to  go  further   and   add   the 

statement  can  be  corrected  in  any  case  provision    that  a   formal  bill  of  excep- 

except  where  the  error  in  it  was  brought  tions  is  necessary  to  make  the  excep- 

aboutby  fraud  or  caused  bv  an  accident,  tion  available. 

"  13 


194  A.PPELLATE  PROCEDURE. 

expression  of  one  thing  implies  the  exclusion  of  others)  implies 
that  no  other  things  than  those  enumerated  shall  be  required. 
There  is  no  more  necessity  for  requiring  a  bill  of  exceptions  in 
an  agreed  case  than  there  is  for  holding  that  a  bill  of  exceptions 
is  necessary  to  exhibit  an  exception  to  a  ruling  upon  a  demurrer 
to  a  complaint,  answer  or  reply.  The  exception  is,  as  we  think, 
part  of  the  record  by  entry  in  the  order  book  without  a  bill  of 
exceptions.  There  would  certainly  be  no  useful  purpose  sub- 
served by  cumbering  the  record  with  a  bill  of  exceptions.  A 
brief  note  of  an  exception  will  accomplish  all  that  a  formal  bill 
of  exceptions  can  properly  do,  and  the  entry  of  such  an  excep- 
tion is  as  essentially  a  part  of  the  record  as  is  the  noting  of  an 
exception  to  a  ruling  upon  a  demurrer  addressed  to  a  pleading.1 

1  The  Ohio  code  is  the  same  as  ours,  required.     In  the  course  of  the  opinion 

and  it  was  held  by  the  Supreme  Court  it  was  said:  "  There  was  nothing  to  put 

of  that  State  in  Brown  v.  Mott,  22  Ohio  in  the  bill  of  exceptions.     The  record 

St.  149,  159,  that  neither  a  motion  for  was  complete  without  it." 
a  new  trial  nor  a  bill  of  exceptions  is 


CHAPTER  XII. 

RESERVED    QUESTIONS    OF    LAW. 

§  233.    Object  of  the  statute.  §  239.    Exceptions  to  the  rulings  upon 

234.  The  case  must  be  made  up  un-  which  questions  are  reserved 

der  the  statute.  necessary. 

235.  Notifying  the  court  of  the  inten-         240.    Bill  of  exceptions  required. 

tion  to  reserve  questions.  241.    Office  of  the  bill  of  exceptions. 

236.  Only  questions  of  law  can  be  re-         242.    A  motion  for  new  trial  neces- 

served.  sary. 

237.  On  what  rulings  questions  may         243.    Appeal    before    final    judgment 

be  reserved.  not  authorized. 

23S.    Questions  of  fact  must  be   ex-         244.    Supersedeas, 
eluded  by  the  record. 

§  233.  Object  of  the  Statute — The  leading  object  of  the  statute 
providing  that  questions  of  law  may  be  reserved  is  to  permit 
questions  to  be  presented  without  embodying  the  entire  evidence 
in  the  record.1  The  statute  is  remedial  in  its  character,  and, 
upon  principle,  should  be  liberally  construed,  but  the  earlier 
cases  seem  to  have  proceeded  upon  an  essentially  different  the- 
ory.2 The  provisions  of  the  statute,  justly  interpreted  and  fairly 
enforced,  are  well  adapted  to  simplify  procedure,  prevent  the 
cumbering  of  the  record  with  unnecessary  matter  and  to  clearly 
present  the  questions  of  law  to  the  appellate  tribunal.  It  is 
seldom  that  the  entire  evidence  is  required  to  present  questions 

1  R.  S.,  1SS1,  §  630.  St.   146;  First  National  Bank  v.   Hur- 

2  Starry  v.  Winnings  Ind.  311;  Doe  ford,  29  Iowa,  579;  Jeffersonville,  etc., 
v.  Herr,  8  Ind.  24;  State  v.  Swarts,  9  Co.  v.  Swift,  26  Ind.  459.  It  is  also 
Ind.  221;  Zehnor  v.  Beard,  S  Ind.  96.  fundamental  that  an  appellate  tribunal 
The  evidence  in  full  is,  in  general,  only  will  not  weigh  evidence.  There  is. 
necessary  where  the  question  is  one  of  therefore,  rarely  any  reason  for  bring- 
fact.  The  principle  is  elementary  that  ing  all  the  evidence  into  the  record, 
where  there  is  some  material  evidence  Many  of  the  covirts  of  last  resort  will 
tending  to  support  the  theory  of  a  party  not  permit  it  to  be  done  except  in  11:1- 
he  is  entitled  to  the  law  applicable  to  usual  cases,  but,  unfortunately,  our 
that  theory.  State  v.  Harrison.  5  Jones  court  has^taken  a  different  view  of  the 
(N.  C),  115;  Breese  v.  State.   12   Ohio  subject. 

(195) 


196  APPELLATE   PROCEDl  RE. 

of  law,  and  in  most  cases  succinct  statements  of  fact  present 
such  questions  in  a  clearer  and  stronger  light  than  it  is  possible 
to  do  by  bringing  all  the  evidence  into  the  record.  The  later 
decisions  have  recognized  the  utility  and  value  of  the  statute 
providing  for  reserving  questions  of  law  and  have  strongly  in- 
timated a  purpose  to  give  it  a  liberal  construction.1 

234.  The  Case  must  be  made  up  under  the  Statute — It  is  neces- 
sary that  parties  who  desire  to  avail  themselves  of  the  provis- 
ions of  the  statute  should  conform  to  its  requirements  in  essen- 
tial particulars.  A  party  can  not  appeal  under  some  other 
statute,  and,  upon  finding  his  appeal  or  record  defective,  as- 
sume that  it  is  a  valid  appeal  and  a  sufficient  record  under  the 
statute  providing  for  reserving  questions  of  law.2  To  permit 
this  to  be  done  would  violate  the  fundamental  principle  of  pro- 
cedure which  requires  parties  to  proceed  upon  a  definite  theory. 
An  appeal  taken  in  one  distinct  mode  can  not  be  prosecuted 
under  a  statutory  provision  which  prescribes  another  and  differ- 
ent mode. 

§  235.   Notifying  the  Court  of  the  intention  to  Reserve  Questions — 

A  party  who  desires  to  reserve  questions  of  law  under  the 
statute  is  required  to  give  notice  to  the  court  of  his  intention. 
This  notice  is  indispensable.3  It  can  hardly  be  said  that  the  law 
requires  the  notice  to  be  in  writing,  but  it  is  certainly  safer  to 
put  it  in  writing,  and  it  is  in  accordance  with  good  practice  to 
do  so.  Some  of  the  courts,  under  statutes  somewhat  similar  to 
ours,  indicate  that  it  is  sufficient  to  give  the  notice  in  time  to 
enable  the  court  to  cause  the  record  to  be  properly  prepared.4 

1  Mercer    v.    Corbin.    117    Ind.    450;         3  Shugart  :.  Miles,  125  Ind.  445. 
Jones  v.  Foley,  121    End.   180;   Shugart         *  It  seems  quite  clear  that  it  is  suffi- 

Miles,  12^  Ind.  44;,  449;  Shewalter  cient   it"  the   notice  is  given  in  such  a 

v    Bergman,    123  Ind.   155;   McCoy  v.  mode  and  at  such  a  time  as   to  enable 

.121  Ind.  160.  the  court  to  make  the  necessary  orders 

2  Shugarl  v.  Miles,  12^  Ind.  445,  449;  for  the  preparation  of  the  record  and 
Jones  v.  Foley,  121  Ind.  1S0;  McCoy  to  allow  it  reasonable  time  to  prepare 
v.  State,    121    Ind.    160;     New   Albany,  the  record  so  as  to  accurately  and  fully 

Co.  v.  Callow,  S  Ind.  471;  Mat-  present  the  facts,  the  rulings  and  the 
tinger  v.  Lake  Shore,  etc.,  Co..  1 17  Ind.     questions  of  law.     In  Shugart  v.  Miles. 

12^    Ind.   445,    it   is   held  that  a  notice 


RESERVED  QJJESTIONS  OF  LAW.  197 

The  notice  must  be  shown  by  the  record.  It  is  not  necessary 
at  the  time  the  ruling  is  made  or  exception  taken  that  the  ob- 
jecting party  should  notify  the  court  that  he  intends  to  reserve 
questions  of  law  under  the  statute.1  The  notice  is,  it  is  mani- 
fest from  the  language  of  the  statute,  intended  to  secure  a 
proper  record,  not  to  affect  the  judgment  or  decision  of  the 
court.  The  objection  and  exception  challenges  and  directs 
attention  to  the  ruling,  but  the  notice  directs  attention  to  the 
mode  of  presenting  the  questions  on  appeal  and  informs  the 
court,  if  properly  framed,  of  the  intention  to  reserve  questions 
of  law.  The  notice  of  the  intention  to  reserve  questions  for 
consideration  on  appeal  gives  character  to  the  case,  and  hence 
it  should  be  so  full  and  clear  as  to  enable  the  court  to  make 
such  a  record,  or  to  direct  the  making  of  such  a  record,  as  shall 
correctly  exhibit  its  ruling  and  enable  the  "appellate  tribunal 
to  apprehend  the  particular  point  involved."  It  is  not  neces- 
sary that  the  notice  should  go  into  particulars,  but  it  is  neces- 
sary that  it  should  inform  the  court  of  the  intention  to  reserve 
questions  of  law,  and,  with  reasonable  certainty,  indicate  the 
rulings  upon  which  questions  are  reserved.  If  it  is  so  definite 
and  certain  as  to  fairly  inform  the  court  of  the  intention  to  re- 
serve questions  of  law  and  fairly  and  reasonably  designate  the 
rulings  upon  which  questions  are  intended  to  be  reserved,  it 
will  accomplish  the  purpose  the  statute  intended  it  should  ac- 
complish, inasmuch  as  it  will  enable  the  court  to  take  the  neces- 
sary steps  to  mold  the  record  as  the  law  requires. 

given  after  the  return  of  the  verdict  and  may  mold  the  record  as  the  statute  re- 
at  the  time  of  filing  the  motion  for  a  quires."  Nor  does  Nay  v.  Byers,  13 
new  trial  is  sufficient.  Ind.  412,  decide  that  notice  must  be 
1  Shugart  v.  Miles,  supra.  The  case  given  when  the  ruling  is  made.  It 
of  Drinkout  v.  Eagle  Machine  Works,  would  render  the  statute  practically 
90  Ind.  423,  is  limited  in  the  case  cited,  nugatory  to  require  notice  to  be  given 
See  p.  452.  It  was  not  decided  in  Dil-  where  the  ruling  is  made,  and  no  good 
Ion  v.  Bell,  9  Ind.  320,  that  the  notice  purpose  would  be  subserved  by  such  a 
must  be  given  at  the  time  the  ruling  is  requirement.  A  party  can  not  know 
made.  What  was  there  said  is  this:  that  he  will  appeal  until  after  verdict, 
'•  To  makeup  the  record  properly  under  and  not  always  then,  so  that  it  would 
the  latter  provision,  counsel  should  no-  be  contrary  to  principle  to  require  him 
tify  the  court  that  it  is  the  intention  to  to  notify  the  court  that  he  intends  to  re- 
take the  question  involved  to  the  Su-  serve  questions  under  the  special  stat- 
pre.ne  Court,  to  the  end  that  the  court  ute. 


APPELLATE   PRl  >CEDURE 

§  23G.  Only  questions  of  law  can  be  Reserved — It  is  settled  by 
the  decisions — and  settled  in  accordance  with  principle — that 
only  questions  of  law  can  be  reserved.'  This  is  obviously  the 
ti  lie  doctrine  since,  as  a  general  rule,  questions  of  fact  are  not 
decided  on  appeal.  It  is  the  correct  doctrine  for  the  further 
reason  that  a  question  of  fact  can  not  be  considered  without  the 
whole  evidence,  and  a  leading  purpose  of  the  provision  re- 
specting  reserved  questions  is  to  dispense  with  the  necessity  of 
bringing  up  all  the  evidence.  It  is  safe  to  say  that  where  all  the 
evidence  is  assumed  to  be  incorporated  in  the  record  the  clear 
inference  is  that  the  case  is  not  one  prepared  in  accordance  with 
the  statutory  provision  under  immediate  discussion.  As  appel- 
late tribunals  decide  onl}r  such  questions  as  have  been  decided  by 
the  trial  court,  it  is  necessary  that  the  questions  reserved  should 
affirmatively  appear  to  have  been  appropriately  presented  to 
the  trial  court  for  decision  and  by  that  court  decided.2  It  must 
further  appear  that  the  questions  of  law  decided  by  the  trial 
court  are  material,3  and  that  the)'  are  not  mere  abstractions.4  It 
is  evident,  therefore,  that  there  must  be  enough  in  the  bill  of 
exceptions  which  assumes  to  present  the  questions  reserved,  to 
affirmatively  show  their  materiality  and  to  show,  also,  that 
there  was  a  real  case  pending  at  the  time  the  rulings  were 
made.  If  it  appears  that  there  were  ordinary  adversary  pro- 
ceedings the  presumption,  in  the  absence  of  countervailing 
facts,  is,  that  there  was  a  real  and  not  a  feigned  controversy.5 

§  237.  On  what  Rulings  questions  may  be  reserved — The  statute 
provides  for  reserving  "any  question  of  law  decided  by  the 
court  during  the  progress  of  the  cause,"  and  provides,  also,  for 
reserving  questions  upon  rulings  on  demurrers  to  pleadings.6 
The  provision  concerning  questions  arising  on  demurrer  is  of  no 

1  Fouty    v.    Morrison,    73  Ind.    $33;  *  Commonwealth    v.    McDowell,   S6 

Shugarl    v.    Miles,  125    End.  445,   449;  Pa.   St.  377;     Woodard  v.  Baker,    116 

Commonwealth   v.  McDowell,   86  Pa.  Ind.  152;  Irwin  v.  Wickersham,  25  Pa. 

77.     Mixed  questions  of  law  and  St.  316. 

can    not    be    reserved.     Woodard  6  Witz  v.  Dale  (Ind.),  27  N.  E.  Rep. 

Baker,  [16  ]  ml.  152.  I^V 

1  Shorl  v.  Stutsman,  81  Ind.  [15.  6  R.  S.,  §  640. 
3  Pi,  1  si    •     West,  29  Ind.  266;   Miller 
Si  ligman,  58  Ind.  |.6i  1 


RESERVED  QUESTIONS  OF  LAW.  I'll) 

practical  utility  or  importance,  for  the  ordinary  mode  of  pre- 
senting questions  upon  rulings  on  demurrer  is  quite  as  effective 
as  that  by  reserving  questions,  and  is  simpler  and  less  likely  to 
result  in  error  or  confusion.1  But  questions  upon  pleadings 
may  well  and  effectively  be  reserved  where  they  do  not  arise 
on  demurrer,  as,  for  instance,  where  they  arise  upon  a  motion 
to  make  more  specific,  to  compel  a  party  to  answer  interroga- 
tories, to  strike  out  interrogatories,  or  the  like.  Questions  aris- 
ing on  several  rulings  made  in  the  progress  of  a  cause  may  be 
reserved,  for  the  party  is  not  confined  to  a  single  ruling.  Anv 
question  of  law  arising  on  a  ruling  made  during  the  progress 
of  the  case  ma}'  be  reserved.  Questions  upon  rulings  on  the 
evidence,2  questions  on  instructions,3  and,  indeed,  all  material 
questions  of  law  actually  arising  upon  rulings  made  during  the 
progress  of  the  cause,  may  be  reserved  for  consideration  on 
appeal. 

§  238.   Questions  of  fact  must  be  excluded  by  the  Record — The 

only  questions  which  can  be  reserved  are  questions  of  law.1 
As  only  questions  of  law  can  be  presented  the  facts  must  be  so 
stated  as  to  show  the  questions  and  to  exclude  an)-  question  of 
fact.  The  question  of  law  must  appear  to  have  been  presented  to 
and  decided  by  the  trial  court."  The  facts  upon  which  the  ques- 
tions of  law  arise  must  appear  in  such  a  form,  although  not  at 
full  length  or  in  detail,  as  will  enable  the  appellate  tribunal  to 
apprehend  the  nature  of  the  questions  and  see  that  they  are  not 
mere  abstractions,6  but  the  facts  sufficiently  appear  where  the 
court  makes  a  statement  clearly  showing  their  character  and 

1  In  Bentlev  v.   Dunkle,  57   Ind.  374.     question  reserved  arose  on  rulings  upon 
one  of  the  questions  reserved  was  upon     the  instructions. 

a  ruling  on  a  demurrer  to  the  complaint.  *  Fouty    v.    Morrison,    73    Ind.    3$$; 

and  the  court,  adjudging  the  complaint  Shugart    v.    Miles.    125    Ind.    445,   449. 

bid.  reversed  the  judgment  hut  did  not  The  question  reserved  must,  as  some  of 

deem  it  necessary   to  decide  the  other  the   cases    say,  "be   one  of  pure  law." 

questions  presented.  Blended  questions  of  law  and  fact  can 

2  Bruce   v.  Tvler.    127    Ind.   468.     In  not    be    reserved.     Commonwealth    v. 
the  ease  cited  a  question  was   reserved  McDowell.  8b  Pa.  St.  377. 

upon  a  ruling  admitting  evidence,  and         5  Short  v.  Stutsman.  Si  Ind.  115. 
the  judgment  was  reversed.  6  Irwin  v.  Wickersham,  25  Pa.  St. 316. 

3  In  Bissell  v.  Wert,  35  Ind.  54,  62,  the 


200  APPELLATE   PROCEDURE. 

bearing.     It  is  the  facts  and   not  the  evidence  that  the  court 
should  embrace  in  its  statement. 

§  i39.  Exceptions  to  the  rulings  upon  which  Questions  are  Re- 
served, necessary — In  accordance  with  the  general  principle  of 
practice  it  is  held,  without  diversity  of  opinion,  that  an  excep- 
tion to  a  ruling  is  essential  to  make  it  available  in  a  case  where 
questions  of  law  are  reserved.  The  absence  of  a  proper  and 
opportune  exception  is  fatal.  The  exception  must,  of  course, 
be  taken  at  the  time  the  ruling  challenged  is  made,  for,  so  fat- 
as  concerns  exceptions,  the  rule  is  the  same  in  cases  where 
questions  of  law  are  reserved  as  in  other  cases.1 

§  240.  Bill  of  Exceptions  Required — In  all  cases  except  those 
in  which  the  questions  arise  upon  a  ruling  on  demurrer,  a  bill 
of  exceptions  is  required.  The  provisions  of  the  code  upon 
the  subject  of  reserving  questions  of  law  are  evidently  bor- 
rowed from  the  common  law  practice  of  presenting  special 
questions  of  law  by  a  bill  of  exceptions,  and  at  common  law 
the  bill  must  make  the  case.  In  jurisdictions  where  statutes 
somewhat  similar  to  ours  are  in  force  it  is  held  that  the  bill  of 
exceptions  must  contain  the  whole  case,  including  the  motion 
for  a  new  trial  and  similar  motions.2  There  is  reason  for  the 
conclusion  that  where  a  bill  is  necessary  the  whole  case  must 
be  exhibited  by  the  bill.  The  statute  seems  to  contemplate 
this,  for  it  provides,  that  the  party  "  shall  notify  the  court  that 
he  intends  to  take  the  question  of  law  to  the  Supreme  Court 
upon  the  bill  of  exceptions  only,  and  the  court  shall  thereupon 
cause  the  bill  of  exceptions  to  be  so  made  that  it  will  distinctly 
and  briefly  embrace  so  much  of  the  record  only  and  the  state- 

1  The  record  must  appropriately  show  of  the  ruling.  Kleinschmidt  v.  Mc- 
that  the  exception  was  taken  in  due  Andrews,  117  U.  S.  282.  See  Ex- 
form  and  proper  reason.  Dickson  v.  ceptions,  post.  The  "case  made" 
Rose,  S7  Ind.  103;  Engard  v.  Frazier,  7  under  the  Kansas  code  (§  547)  is  simi- 
Tnd.  154;  Phelps  v.  Mayer,  15  How.  (U.  lar  to  a  reserved  case  under  our  statute, 
S.)  1 60;  Turner  v.  Yates,  16  How.  (U.  and  it  is  held  that  exceptions  must  be 
S.)  14.  For  an  able  and  elaborate  re-  taken  as  in  other  cases.  Hogden  v. 
view  of  the  authorities  see,  Danks  v.  Commissioners,  10  Kan.  637. 
Rodeheaver,  26  W.  Va.  274.  But  an  '  Parker  v.  Remington,  etc.,  Co.,  24 
exception  can  not  be  taken  in  advance  Kan.  31. 


RESERVED  QUESTIONS  OF  LAW.  201 

ment  of  the  court  as  will  enable  the  Supreme  Court  to  appre- 
hend the  particular  question  involved."1  The  restriction  as  to 
the  notice, — requiring  that  it  shall  inform  the  court  that  the 
party  intends  to  take  the  case  to  the  appellate  tribunal  on  "  the 
bill  of  exceptions  only,"  2 — and  the  provision  that  the  court  shall 
cause  a  bill  of  exceptions  "to  be  so  made  that  it  will  distinctly 
and  briefly  embrace  "  part  of  the  record,  clearly  imply  that 
the  whole  case  must  be  contained  in  the  bill  of  exceptions. 
We  can  not  escape  the  conclusion  that,  in  view  of  the  object  of 
the  statute,  the  source  from  which  its  essential  provisions  were 
obtained,  and  the  language  employed  by  its  framers,  the  bill 
of  exceptions  must,  where  a  bill  is  required,  contain  the  whole 
case.3 

§  241.  Office  of  the  Bill  of  Exceptions— The  office  of  the  bill  of 
exceptions  is,  as  we  believe,  to  present  the  whole  case  on  ap- 
peal. This  is  the  rule  under  statutes  somewhat  different  from 
ours,  yet  in  their  object  and  leading  characteristics  very  sim- 
ilar. The  object  of  the  statute  is,  as  we  conceive,  to  secure  a 
bill  complete  in  itself,4  and  so  framed  as  to  clearly  and  fully 
present  all  the  questions  of  law  reserved.  It  must  embrace  all 
that  is  necessary  to  enable  the  appellate  tribunal  "  to  apprehend 
the  particular  questions  involved  "5  since  this  is  what  the  law 
commands  the  trial  court  to  make  it  do.     The   requisite  facts 

1  R.  S.  iSSi ,  §  630.  the  record.     To  comply  with  the  stat- 

2  The  adjective  '"only  "  is  significant  ute,  to  present  errors  for  review,  it  must 
in  view  of  the  words  with  which  it  is  embody  a  statement  of  so  much  of  the 
associated.  issue,  proceedings,  evidence  and   other 

3  There  is  nothing  in  the  case  of  Reid  matters  in  the  action  as  may  be  neces- 
V,  Houston,  49  Ind.  1S1,  opposing  this  sary  to  bring  to  our  notice  from  an  ex- 
conclusion.  That  case  does  not  decide  amination  of  the  paper  settled  and  au- 
that  reserved  questions  may  be  pre-  thenticated  as  a  case  made,  the  errors 
sented  without  a  bill  of  exceptions,  nor  complained  of.  Again,  one  object,  we 
does  it  decide  that  where  a  bill  is  re-  know  of  a  case  made,  an  object  not  al- 
quired,  a  case  may  be  shown  partly  by  ways  appreciated  by  counsel,  is  to  re- 
the  bill  and  partly  in  some  other  mode,  duce  the  size  of  the  record."    In  another 

4  In  speaking  of  a  "case  made"  the  case,  it  was  said  that  the  "case  must  be 
Supreme  Court  of  Kansas  said  in  the  complete  in  itself."  See,  Parker  v. 
Missouri,  etc.,  Co.  v.  Palmer,  19  Kan.  Remington,  etc.,  Co.,  24  Kan.  31; 
471,  "It  is  to  contain  matters  of  record  Lownsbury  v.  Rakestraw.  14  Kan.  151. 
as  well  as  proceedings  not  entered  on  5  Miller  v.  Seligman,  5S  Ind.  460,463. 


APPELLATE   PROCEDURE. 


must  be  briefly  stated.  The  evidence  in  full  need  not  be  stated 
unless  the  case  is  one  where  all  the  evidence  is  necessary  in 
order  to  present  the  questions  of  law.1  Where,  however,  all 
the  evidence  is  necessary  it  is  better  and  safer  to  prepare  the 
ease  for  appeal  in  the  ordinary  mode.  The  questions  reserved 
must  be  so  presented  as  to  make  it  affirmatively  appear  that  the 
rulings  were  injurious  to  the  complaining  party,2  and  to  do  this 
it  is  necessary  to  exclude  the  presumption  which  prevails  in 
favor  of  the  trial  court."'  While  it  is  true  that  the  statute  in 
terms  requires  a  statement  of  the  court  and  not  the  evidence,  it 
is,  nevertheless,  true,  that  under  the  construction  given  the 
statute  there  are  cases  where  part,  at  least,  of  the  evidence  may 
be  exhibited  instead  of  the  facts.4  But,  as  we  suppose,  where 
specific  statements  of  the  court  are  embodied  in  the  bill  and 
they  are  so  full,  complete  and  definite  as  to  accurately  and 
clearly  exhibit  the  questions  involved,  the  absence  of  the  evi- 
dence is  not  material.  If  it  were  not  for  the  decisions  we  should, 
indeed,  be  inclined  to  the  opinion  that  it  is  not  proper  to  set 
forth  the  evidence  inasmuch  as  the  statute  makes  no  provision 

1  Conner  v.  Town  of  Marion,  112  Ind.     whole  record.     Where  t  lie  error  is  ap- 
517      We  can  not  avoid  the  conclusion     parent  without   such  special  statement 


that  the  framers  of  the  statute  intended 
that  the  facts  should  be  embodied  in  the 
ment  of  the  court  and  not  the  evi- 
dence, hut  the  cases  in  our  reports  in- 
dicate a  different  doctrine. 


or  without  the  evidence,  there  is  no  ne- 
cessity for  either." 

*  In  the  case  of  The  Indiana,  etc..  Co. 
V.  Adams.  1  1  j  Ind.  302,  307,  it  was  said: 
"A  mere  recital  by  the  court  of  its  con- 


s  Shugarl  v.  Miles.  [25    Ind.  445,  450;  elusions   touching  the  point  in  contro- 

Downs  v.  Opp,  82  Ind.  166;  Mitchell  v.  versy  is   nol  sufficient,     Construing  §§ 

Dibble,  14  Ind.  526.  627,  630,,  R.  S.  1SN1,  in  pari  materia,  it 

3  Hedrick  v.  Hedrick,  74  Ind.  7S;  In-  is  necessary,  when  an  appeal  is  taken 
diana.  etc..  Co.  v.  Adams,  112  Ind.  302;  under  the  latter  section  upon  a  bill  of 
Conner  v.  Town  of  Marion,  112  Ind.  exceptions  only,  and  the  question  re- 
517;  Perkins  v.  Hayward,  124  Ind. 445;  served  is  upon  the  exclusion  of  evidence, 
Starry  v.  Winning,  7  Ind.  311.  If  the  that  the  hill  of  exceptions  should  show 
error  is  exhibited  and  its  harmful  char-  enough  of  the  case  and  the  evidence 
acter  shown,  the  question  is  well  re-  touching  the  point  in  controversy  to 
served.  In  Lane  v.  Miller,  17  Ind.  5S,  show  the  relevancy  of  the  evidence  re- 
the  court,  in  speaking  of  the  statute  un-  jected.  Downs  v.  Opp,  S2  Ind.  166.  In 
del  consideration,  said:  "That  section  the  absence  of  anything  beyond  the  re- 
was  intended  to  enable  parties  to  avail  citals  in  the  bill  of  exceptions,  we  must 
themselves  of  an  error  1>\  stating  the  presume  the  evidence  rejected  was  ir- 
case  so  as  topresentthe  error  ami  make  relevant.*' 
it    apparent   without    bringing    up    the 


RESERVED  QJJESTIONS  OF   LAW.  203 

for  setting  forth  the  evidence,  but  expressly  requires  a  state- 
ment of  the  court.  The  express  mention  of  the  one  thing  im- 
plies the  exclusion  of  the  other.  We  are,  at  all  events,  satistied 
that  where  the  proper  statements  of  the  court  are  given,  the  evi- 
dence is  not  required. 

§  242.  A  motion  for  New  Trial  necessary— The  earlier  cases 
were  in  conflict  upon  the  question  whether  a  motion  for  a  new 
trial  was  or  was  not  required,  but  it  has  been  finally  settled  that 
such  a  motion  is  necessary.1  This  rule  is  in  accordance  with 
the  wide  reaching  general  principle  that  a  motion  for  a  new 
trial  is  essential  in  order  to  give  the  trial  court  an  opportunity 
to  review  its  rulings  and,  if  need  be,  to  correct  errors  into  which 
it  may  have  fallen.  The  rule  is  defensible  upon  the  further 
ground  that  a  statutory  prevision  is  not  to  be  isolated  and  de- 
tached from  other  provisions,  but  is  to  be  considered  in  connec- 
tion with  them.  The  doctrine  that  all  the  statutory  provisions 
upon  the  same  general  subject  should  receive  consideration,  if 
adhered  to,  tends  to  prevent  discord  and  secure  symmetry  and 
harmony,  so  that  the  rule  as  finally  settled  has  much  to  com- 
mend it. 

§  243.  Appeal  before  final  judgment  not  authorized — The  statute 
does  not  confer,  nor  assume  to  confer,  a  right  of  appeal  ;  it 
simply  provides  the  mode  in  which  questions  of  law  may  be  re- 
served. The  fact  that  questions  of  law  are  reserved  exerts  an 
influence  upon  the  mode  of  presenting  the  questions  and  of 
preparing  the  record,  but  leaves  the  right  to  appeal  to  be  deter- 
mined by  other  rules  of  law.  The  general  rule  that  an  appeal 
will  not  lie  from  intermediate  rulings  applies  to  cases  where 
questions  of  law  are  reserved,  and  an  attempt  to  appeal  before 
final  judgment  will  be  fruitless.2 

§  244.  Supersedeas — The  statute,  in  terms,  makes  a  case  where 
questions  of  law  are  reserved  a  peculiar  one   in   regard  to  the 

1  State  v.  Swarts,9  Ind.  221;  Kent  v.  Ind.  517;    Love   v.   Carpenter,  30  Ind. 

Lawson,  12  Ind.  675;  Carver  v.  Dau-  2S4;  Shugart  v.  Miles,  125  Ind.  445. 

benspeck,  22  Ind.  23S;   Starner  v.  State.  2  Taylor  v.  Board  of  Commissioners. 

61  Ind.  360;  Rousseau  v.  Corey,  62  Ind.  120  Ind.  121. 
S50;    Conner    t\    Town  of  Marion,  112 


204  APPELLATE  PROCEDURE. 

stay  of  proceedings  upon  the  judgment.  Its  language  is  ex- 
plicit and  it  seems  clear  that  a  stay  of  proceedings  can  only  be 
ordered  by  the  appellate  tribunal  or  some  one  of  its  members. 
We  have  been  unable  to  find  any  decision  giving  a  construction 
to  the  statute,  but  its  language  seems  so  clear  and  decisive  that 
there  is  no  room  for  construction.1 

1  The  language  of  the  statute  is  this:  unless  so  ordered  by  the  SupremeCourt 
■  The  appeal  in  such  a  case  shall  not  or  some  judge  thereof."  R.  S.  1SS1,  § 
stay   proceedings  upon    the    judgment     631. 


CHAPTER  XIII. 

MODES  OF  APPEAL  IN  CIVIL   ACTIONS. 

§  245.  The  different  modes  of  appeal.  §  250.  Appeal  after  term. 

246.  Appeals  in  term.  251.  Classes  of  appeals  after  term. 

247.  Requisites  of  an  appeal  in  term.  252.  Civil  actions — Definition. 

248.  A  bond  essential  to  an  appeal  in  253.  What  cases   are    appealable    as 

term.  civil  actions. 

249.  Ineffectual  attempt  to  appeal  in 

term. 

§  245.  The  different  modes  of  Appeal — While  the  remedy  in  all 
civil  actions  is  by  appeal  there  are,  nevertheless,  different  modes 
of  procedure.  All  civil  actions  are  appealable  as  such  under 
the  general  rules  prescribed  for  appeals,  but  the  procedure  is 
not  the  same  in  all  cases.  A  party  may  elect  which  of  the  stat- 
utory methods  he  will  pursue,  and  an  appeal  perfected  within 
the  time  prescribed  and  in  the  manner  provided  will  be  effect- 
ive. But  it  is  to  be  borne  in  mind  that  the  general  rules  gov- 
erning appeals  in  civil  actions  apply  to  appeals  from  final  judg- 
ments and  not  to  appeals  from  interlocutory  orders.  As  we 
have  already  suggested,  express  and  special  provisions  govern 
appeals  from  interlocutory  orders,  and  from  such  an  order  no 
appeal  can  be  effectual  unless  taken  within  the  time  and  in  the 
mode  prescribed.  This  rule  is  not  contravened  by  the  doctrine 
that  errors  respecting  interlocutory  orders  may,  as  we  have 
elsewhere  shown,  be  made  available  on  a  general  appeal  bring- 
ing up  the  whole  case.  To  prevent  misconception  it  may  be 
well  enough  to  say  that  there  is  an  essential  difference  between 
taking  and  perfecting  an  appeal  under  a  special  statute  and 
making  errors  available  in  the  appellate  tribunal  in  cases  where 
a  general  appeal  is  taken  and  perfected  as  the  law  requires. 

§  246.  Appeal  in  Term — The  first  of  the  modes  of  appealing  in 
civil  actions  may  be   appropriately  designated   as  "An  Appeal 

(205) 


APPELLATE   PROCEDURE. 

in  Term."1  A  marked  feature  of  an  appeal  in  term  is  that  pro- 
cess need  not  be  issued  against,  or  served  upon,  the  party 
against  whom  the  appeal  is  prosecuted.2  The  party  who  ap- 
peals must  do  what  is  required  to  be  done  during  term  or  within 
the  time  fixed  in  term  by  the  trial  court,  otherwise  his  appeal 
will  not  be  effective  as  a  term  time  appeal  ;  whether  a  different 
mode  of  procedure  may  be  adopted  is  not  here  the  immediate 
question,  since  we  are  directly  concerned  with  an  appeal  in 
term.-1  To  perfect  an  appeal  in  term  these  steps  must  be  taken  : 
i .  An  appeal  must  be  prayed  during  the  term  at  which  the 
judgment  was  rendered,  and  it  must  be  granted  during  that 
term.  2.  The  penaltv  of  the  bond  must  be  fixed  and  the  surety 
named  during  the  term  at  which  the  judgment  was  rendered. 
3.  The  bond  must  be  filed  during  that  term  and  approved  by  the 
court,  or  the  court  must,  during  that  term,  fix  a  time  within 
which  the  bond  shall  be  filed,  and  it  must  be  filed  and  approved 
by  the  court  within  the  time  designated.  4.  The  transcript 
must  be  filed  in  the  office  of  the  clerk  of  the  Supreme  Court 
within  sixty  days  after  the  filing  of  the  bond. 

§  247.  Requisites  of  an  Appeal  in  Term — The  first  requirement 
of  the  statute  governing  appeals  in  term  needs  no  discussion, 
nor  does  the  second.  The  third  requirement  seems  to  require 
some  consideration  and  for  clearness  and  convenience  it  may 
be  thus  divided  :  The  bond  must  be  filed  within  the  prescribed 
time  ;  it  must  be  approved  by  the  court.4  In  our  judgment  the 
bond  must  be  filed  as  required  by  the  statute  or  there  is  no  ef- 

1  R.  S.,  §  63S.  within    the    time  prescribed   or  to  the 

3  Conawayf. Ascherman, 94 Ind.  187,  question  as  to  the  effect  of  the  appeal 

18S.  considered  with  respect  to  staying  pro- 

3  We  are  not  now  considering  the  ef-  ceedings.  We  are  considering  it  with- 
fect  of  the  appeal  in  term,  nor  are  we  out  any  reference  to  consent  or  waiver, 
dealing iwith  the  question  whether  the  express  or  implied.  We  are,  in  short, 
failure  to  perfect  an  appeal  as  in  term  attempting  to  prove  what  the  law  is 
will  preclude  an  appeal  in  a  different  where  the  appellee  appropriately  and 
mode.  opportunely  heists  that  the  appeal  i>  not 

4  These  propositions,  we  may  say  by  effective  as  an  appeal  in  term  upon  the 
way  of  preface,  we   discuss  with   refer-  ground    that    the    requirements  of  the 

to  the  question,  what  is  essential  statute  have  nol  been  complied  with  by 
to  an  appeal  in  term?  and  not  with  ref-  the  party  asserting  a  right  to  prosecute 
erence  to  the  effi  iOnd  not  given     a  term  time  ap, 


MODES  OF  APPEAL  IN  CIVIL  ACTIONS. 


in- 


fective appeal  in  term.1     The  statute  declares  that  a  bond  must 
be  filed  within  the  time  designated,  and  this  requirement  is  as 


1  We  are  aware  that  this  conclusion 
is  opposed  to  the  views  of  Judge  Bus- 
kirk,  who  says,  "  Where,  therefore,  a 
party  takes  an  appeal  in  term,  not 
intending  it  to  operate  as  a  supersedeas, 
he  should  simply  pray  an  appeal  and 
file  his  transcript  in  the  clerk's  office 
of  the  Supreme  Court,  and  the  appeal 
will  be  operative,  but  will  not  stay  exe- 
cution or  other  proceedings  on  the 
judgment."  Buskirk's  Prac.  62.  The 
learned  author  cites  the  cases  of  Jones 
v.  Droneberger,  23  Ind.  74;  Sturgis  v. 
Rogers,  26  Ind.  1;  Burt  v.  Hoettinger, 
28  Ind.  214;  Ham  v.  Greve,  41  Ind.  531, 
but  these  cases  do  not  support  him.  In 
the  case  last  cited  he  said,  in  writing  the 
opinion  of  the  court,  that,  "  The  fixing 
of  the  penalty  of  the  bond  and  the  filing 
of  the  same  within  the  time  directed  by 
the  court  are  as  essential  to  the  effec- 
tiveness of  the  appeal  in  term  so  as  to 
stay  proceedings,  as  is  the  filing  of  the 
bond  within  thirty  days  from  the  judg- 
ment to  an  appeal  from  a  justice  of  the 
peace.  It  would  hardly  be  pretended 
that  if  a  defendant  in  a  judgment  before 
a  justice  of  the  peace  should  file  a  bond 
after  the  expiration  of  thirty  days,  the 
surety  in  the  bond  would  be  held  liable 
for  such  judgment."  It  seems  to  us 
that  the  reasoning  proves  that  where  no 
bond  is  filed  within  the  time  required 
by  law  there  is  no  effective  appeal  in 
term.  Whether  an  appeal  may  be 
taken  upon  notice  is  not  the  question, 
but  the  question  is,  can  the  court  hold, 
when  objection  is  made,  that  there 
may  be  an  appeal  in  term  although  no 
bond  is  filed  as  the  law  requires?  We 
think  that  the  fundamental  error  is  in 
assuming  that  some,  only,  of  the  steps 
made  essential  by  the  statute  are  re- 
quired to  be  taken  within  the  time  lim- 
ited. We  believe,  on  the  contrary,  that 
all  that  the  law  makes  essential  to  the 


effectiveness  of  an  appeal  assumed  to  be 
taken  in  a  particular  mode  must  be  done 
as  the  law  prescribes.  We  have,  on 
preceding  pages,  shown  that  the  appeal 
must  be  fully  perfected  within  the  time 
by  doing  what,  the  law  requires.  Ante, 
§  128.  In  the  paragraphs  that  follow 
additional  authorities  will  be  cited,  and 
additional  reasons  given  for  our  opin- 
ion that  the  bond  must  be  filed  as  t  la- 
law  requires  or  there  is  no  appeal  in 
term.  While  it  is  true  that  a  bond  is 
not  always  essential  to  an  appeal,  yet, 
where  it  is  made  essential,  there  can  be 
no  appeal  in  the  mode  in  which  it  is 
required  without  it,  and  it  is  made  es- 
sential to  an  appeal  in  term  by  the  law. 
Webber  t'.  Bueger  (Col.),  27  Pac.  Rep. 
871.  There  may  be  an  appeal  in  other 
modes,  but  not  a  term  appeal,  without 
a  bond.  Where  no  bond  is  filed  there 
is  no  appeal  in  term,  and  the  appeal 
must  be  upon  notice.  This  conclusion 
is  fully  supported  by  the  decision  in 
Holloran  v.  The  Midland  Railroad  Co., 
28  N.  E.  Rep.  549,  where  it  was  said, 
"In  this  case  there  was  not  a  compli- 
ance with  section  63S,  supra.  There 
was  no  time  fixed  for  the  filing  of  a  bond 
and  no  bond  was  filed  in  accordance 
with  the  provisions  of  the  statute.  All 
appeals  not  taken  in  accordance  with 
section  638,  supra,  require  notice  to  be 
given."  As  sustaining  this  conclusion 
the  court  cited  Ruschaupt  v.  Carpenter, 
63  Ind.  359;  Hays  v.  Wilstach,  101  Ind. 
100;  Goodwin  v.  Fox,  120  U.  S.  77c;.  777. 
The  conclusion  asserted  in  Holloran  v. 
Midland  Railway  Co.,  supra,  is  sup- 
ported by  many  analogous  cases.  Weir 
v.  St.  Paul,  etc.,  Co.,  iS  Minn.  155; 
McVev  v,  Heavenridge,  30  Ind.  100; 
Leffel  v.  Obenchain,  90  Ind.  50.  See, 
also,  cases  cited  in  the  paragraphs  that 
follow. 


208  APPELLATE  PROCEDURE 

mandatorv  as  any  of  the  others,  and,  as  said  by  the  Supreme 
Court  of  the  United  States,  "the  court  can  not  dispense  with 
an  act  required  by  the  law-making  power."  Our  own  cases 
show  that  where  the  statute  requires  that  a  bond  shall  be  tiled 
in  order  to  perfect  an  appeal,  there  is  no  effective  appeal  unless 
the  bond  is  filed  as  the  statute  requires.  The  cases  in  which 
this  is  expressly  held  are,  it  is  true,  based  upon  the  statute 
which  permits  appeals  from  interlocutory  orders,1  but  the  prin- 
ciple asserted  is  the  same.  The  Federal  courts  hold  that  where 
a  bond  is  required  an  appeal  is  not  perfected  until  one  is  filed.2 
Many  cases  affirm  that  where  the  statute  requires  a  bond  one 
must  be  filed  or  the  appeal  will  be  dismissed.3  Some  of  the 
courts  hold  that  where  a  bond  is  required  and  none  is  filed  the 
appellate  court  has  no  jurisdiction,4  but  we  think  that  under  our 
statute  the  failure  to  file  a  bond  may  be  obviated  by  giving 
notice  and  appealing  in  the  mode  prescribed  for  appealing  after 
term.  It  is  laid  down  by  our  own  cases  that  the  bond  must  be 
approved  by  the  judge,5  and  the  Supreme  Court  of  the  United 
States  so  lays  down  the  rule,  holding  that  the  authority  to  ap- 
prove the  bond   can  not  be  delegated.6     So  it  has  been  held 

1  Staley  v.  Dorset,  n  Ind.  367;  Keener.  White,  136 Mass. 23;  Wheeler, 
Berry  v.  Berry,  22  Ind.  275;  Simpson  e£c,  Co.  v. Burklingham,  137  Mass.  581; 
:  .  Pearson,  31  Ind.  1.  Putnam  v.  Boyer,  140  Mass.  235;    Lit- 

2  The  S.  S.Osborne,  105  U.  S.  447,  tie  v.  Jacks,  6S  Cal.  343;  Sutherland  v. 
4^0;  Providence- Washington  Ins.  Co.  Putnam  (Ariz.).  24  Pac.  Rep.  320; 
:  Wager,  37  Fed.  Rep.  59;  Boyce  v.  Danvers  v.  Durkin,  14  Ore.  37,  12  Pac. 
Grundy, 6Pet.  777.  But  a  bond  may  be  Rep. 60;  Rozier  v.  Williams,  92  111.  1S7; 
waived.      Kingsbury    v.    Buckner,    134  Mailman  v.  Texas,  etc.,  Co.,  40  Texas, 

-   650.  465;  Canfield  v.  City  of  Erie,  21  Mich. 

;  We  cite  a  few  of  the  numerous  cases.  160. 
Bank  of  America  v.  Fortier,  27  La.  Ann.  5  McCloskey,  etc..  Co.  v.  Indianapo- 
243;  Henshaw  v.  McDowell,  99  N.  C.  lis,  etc.,  Co.,  87  Ind.  20;  Burk  v.  How- 
He  Lashnutt  v.  Selhvood,  10  Ore.  aid.  [5  Ind.  219.  There  may  be  a 
^1 ;  Chicago,  etc.,  Co.  v.  The  President,  waiver  by  agreement.  Easter  v.  Ackle- 
etc,  i->|  IH.91;  Reed  v.  Creditors,  37  mire,  81  Ind.  163;  Jones  r.  Droneberger, 
La.  Ann.  907;    Stratton  v.  Graham,  68  23  Ind.  74. 

Cal.   168;     Sharon    v.  Sharon.   68   Cal.         6  O'Reilly  v.  Edrington,  96  U.  S.  724; 

326;     Eureka    Steam     Heating    Co.    v.  Ilaskins  v.  St.  Louis,  etc.,  Co.,  109  U. 

email,  67  Wis.  118;    Green  v.  Cas-  S.     106;     National    Bank    v.    Omaha, 

tello,  35  Mo.  App.  127;  Law  v.  Nelson,  96U.S.737.  The  bond  may  be  approved 

14  Col.  409,  24  Pac.  Rep.  2.  by  the  judge  out  of  court.     Hudginsr;. 

4  Henderson    V.    I'.enson.    141     Mass.  Kemp.  iS  How.  (U.  S.)  530. 
218;   Stantom  t.  Ballard,  133  Mass.  464; 


MODES  OF  APPEAL   IN   CIVIL   ACTIONS. 


209 


elsewhere.1  It  seems  clear  that  if  there  must  be  a  bond  to  ap- 
prove there  must  be  a  bond  filed  within  the  time  limited  or 
there  is  no  appeal  in  term.2 

§  248.  A  Bond  Essential  to  an  Appeal  in  Term — It  is  evident 
that  the  framers  of  the  statute  in  providing  for  an  appeal  in 
term  intended  to  designate  all  the  steps  that  should  be  taken  to 
perfect  such  an  appeal,  not  to  provide  merely  some  of  the  steps 
that  should  be  taken  by  the  appellant.  If  one  of  the  steps  des- 
ignated is  important,  so  are  they  all,  and  the  courts  have  as 
little  power  to  dispense  with  one  step  as  with  all.  What  the 
statute  requires  must  be  done,  or  there  is  no  appeal  in  term.3 
The  section  of  the  statute  giving  an  appeal  in  term4  provides  for 


1  Julian  v.  Rogers,  S7  Mo.  229. 

2  In  the  case  of  Averill  v.  Dickerson, 
1  Blackf.  3,  the  general  doctrine  Ave 
assert  was  laid  down  and  the  court 
cited  the  case  of  Hardin  v.  Owings,  1 
Bibb.  214.  In  stating  what  must  be 
done  in  order  to  effect  an  appeal  in 
term  Judge  Buskirk  says:  "1.  An  ap- 
peal must  be  prayed  for  and  granted  by 
the  court  during  the  term  of  the  court 
at  which  the  judgment  was  rendered. 
2.  The  appeal  bond  must  then  be  filed 
and  approved  by  the  court,  or  it  must 
be  filed  within  such  time  as  the  court 
may  direct  of  record;  but  in  either 
event  the  penalty  of  the  bond  must  be 
fixed  and  the  surety  approved  by  the 
court.  3.  If  the  bond  is  not  filed  in 
term,  the  court  must  fix  the  penalty, 
approve  the  surety,  and  direct  in  what 
time  the  bond  must  be  filed.  4.  The 
bond  must  be  filed  within  the  time  di- 
rected. 5.  The  transcript  must  be  filed 
in  the  office  of  the  clerk  of  the  Supreme 
Court  within  sixty  days  from  the  time 
the  bond  is  filed."  Buskirk's  Prac.  61. 
This  is  a  correct  statement  of  what 
must  be  done  to  perfect  an  appeal  in 
term,  and  we  think  the  author's  state- 
ment, quoted  on  a  preceding  page,  that 
a  bond  need  not  be  filed  is  erroneous. 

ture 

14 


into  error  by  confusing  an  appeal  upon 
notice  Avith  an  appeal  in  term  wherein 
no  notice  is  required.  The  performance 
of  all  the  acts  required  by  the  statute 
dispenses  with  notice,  but  the  court  can 
not  rightfully  adjudge  that  performance 
of  a  part  only  of  the  acts  required  by 
law  will  dispense  with  notice. 

3  The  decision  in  Burt  v.  Hoettinger, 
2S  Ind.  214,  does  not  oppose  this  con- 
clusion, for  there  was  no  question  in  that 
case  as  to  what  was  necessary  to  con- 
stitute an  appeal  in  term.  There  was 
not  any  such  question  in  Sturgis  v .  Rog- 
ers, 26  Ind.  1,  and,  of  course,  there  could 
be  no  decision  upon  it,  nor  was  there 
any.  In  Jones  v.  Droneberger,  23  Ind. 
74,  the  bond  was  filed  within  the  time 
fixed  by  the  court,  although  there  is  in 
that  case  a  single  sentence  declaring 
that  the  appeal  was  good  without  a 
bond.  The  question  was  not  before  the 
court,  no  authorities  are  cited  and  no 
reasons  are  given.  Evidently  the  court 
did  not  mean  to  decide  a  question  not 
before  it,  and  what  it  said  is  purely  ob- 
iter dicta  and  that  of  unusually  little 
weight. 

*  R.  S.,  §  63S.  The  provisions  of  this 
section  require  all  the  acts  essential  to 
an  appeal  in  term  to  be  done  below,  ex- 
cept that  of  filing  the  transcript.    If  not 


210  APPELLATE   PROCEDURE. 

a  complete  mode  of  appeal,  and  does  not  simply  provide  for 
some  of  the  steps  that  must  be  taken.  It  dispenses  with  the 
important  element  of  notice  which  is  required  in  all  other  cases, 
but  in  doing  this  substitutes  a  system  of  procedure  requiring 
that  all  the  acts  specified  shall  be  performed.1  If  it  be  held  that 
tiling  a  bond  is  not  essential  to  the  appeal  in  term,  then  it  is  de- 
clared that  it  is  in  the  power  of  the  courts  to  accept  as  binding 
some  of  the  provisions  of  one  section  of  the  statute  and  reject 
others,  and  this,  too,  where  the  statute  is  directed  to  a  single 
object  and  intended  to  create  a  single  and  complete  mode  of 
appeal.  Nor  is  this  all,  for,  if  the  filing  of  the  bond  be  not  es- 
sential to  the  validity  of  an  appeal  in  term,  no  one  of  the  other 
enumerated  acts  can  be  deemed  essential,  for  all  are  firmly  in- 
terlaced, and  severance  is  neither  legally  nor  logically  possible. 
It  would  result  in  rendering  provisions  of  the  statute  ineffective, 
and  it  would  also  produce  conflict  to  declare  that  a  bond  is  not 
required  as  one  of  the  steps  of  the  appeal.  Notice  is  required 
where  no  bond  is  exacted,  as  a  step  of  the  procedure,  and  it  is 
evident  that  the  statute  contemplates  that  there  shall  be  distinct 
modes  of  appeal  in  one  of  which   a  bond  is  essential  to  the  ap- 

there  done  the  appeal  is  not  perfected  Langley  v.  Warner,  i   N.  Y.  606;   Kel- 

as  a  term   appeal,  although    there  may  sey  V.  Campbell,  3S  Barb.  23S;   Dresser 

be  a  second  appeal.     But  a  second  ap-  v.  Brooks,  5   I  low.   Pr.  75;   Cowdin   v. 

peal    implies   the  ineffectiveness  of  the  Teal,  67  N.  Y.  5S1.     It  is  true  that  the 

first,  bond  serves  a  double  purpose,  but  this 

1  Judge  Works  says:   "The  statute  an-  does  not  prove  that  it  is  not  a  step  in  per- 

thorizes  an  appeal  during  the  term.     A  fecting  the  appeal.    Doing  one  act  is  not 

must  be  given  in  the  court  below  sufficient  to  give  efficacy  to  the  appeal; 

during  the  term,  or  within  the  time  fixed  all  that  the  statute  requires  must  be  done. 

!>\    the  court,  and  the  transcripl  must  be  Pratt  t\  Western  Stage  Co., 26  Iowa,  241. 

filed  within  sixty  days  after   filing  the  We  understand  quite  well  that  there  is  a 

bond."    2  Works' Practice,  30.    In  June  difference  between  perfecting  an  appeal 

v.  Payne,  107  Ind.  307.  the  tiling  of  the  and  obtaining  a  stay  of  proceedings,  but 

bond  is  recognized  as  a  step  of  the  pro-  this  does  not    affect  the  validity  of  our 

tl  ten       id:  "An  appeal  proposition    thai    the    statute    makes  a 

pra}-ed  for  in  term  and  perfected  within  complete    mode   of    appeal,   prescribes 

the  time  limited  by  the  court,  suspends  what    steps  shall   be  taken,  and  that  as 

all    proceedings    on    the    judgment   ap-  the  filing  of  the  bond  is  one  of  the  steps 

pealed  from."  The  principle  that  where  prescribed,  the  performance  of  that  act, 

the  statute  makes  a  bond  necessary  to  unless  waived,  is  essential  to  the  effect- 

the  appeal,  it  must  be   filed   is  asserted  iveness  of  an  appeal  in  term, 
in  Raymond  v.  Richmond,  76  N.Y.  to6; 


MODES  OF  APPEAL  IN  CIVIL   ACTIONS. 


211 


peal,  not  merely  to  the  stay  of  proceedings.  There  can  be  no 
doubt  that  filing  a  transcript  is  part  of  the  procedure  essential 
to  the  effectiveness  of  the  appeal,  and  the  requirement  that  the 
transcript  shall  be  filed  is  inseparably  linked  with  the  filing  of 
the  bond,  and  a  severance  can  only  be  effected  by  a  violent  and 
unnatural  construction.1 

§  249.  Ineffective  Attempt  to  Appeal  in  Term — An  ineffectual 
attempt  to  appeal  in  term  will  not  preclude  an  appeal  upon 
notice.2  But  the  acts  required  to  be  done  in  order  to  perfect  an 
appeal  without  giving  notice  must  be  substantially  performed, 
or  an  appeal  must  be  taken  by  giving  notice.3     The  only  method 


1  R.  S.,  §§638,  639,  640.  The  revision 
of  1SS1  adds  a  provision  to  section  633 
of  the  code  of  1852.  That  provision 
reads  thus:  "That  nothing  in  this  sec- 
tion shall  be  so  construed  as  to  prevent 
any  such  appellant  from  filing  the  tran- 
script and  perfecting  an  appeal  after- 
ward according  to  law."  If  the  failure 
to  do  the  acts  indicated  in  the  provision 
of  the  statute  which  prescribes  the  mode 
cf  appeal  designated  as  an  appeal  in 
term,  did  not  destroy  the  effectiveness 
of  the  appeal  assumed  to  be  taken  as  a 
term  appeal,  there  would  be  no  neces- 
sity for  providing  for  a  second  appeal 
in  a  different  mode,  because  of  the  fail- 
ure to  perfect  the  first.  The  true  way 
to  harmonize  the  provisions  of  the  stat- 
ute referred  to  is  to  hold  that  there  are 
two  general  classes  of  appeals  in  civil 
actions;  one,  appeals  upon  notice,  and 
the  other,  appeals  in  term,  and  that  the 
appeal  of  the  latter  class  can  not  be 
perfected  without  filing  a  bond.  We 
think  this  conclusion  is  demanded  by 
the  fact  that  the  statute  enumerates 
what  steps  shall  be  taken  to  perfect  an 
appeal  in  term,  and  that  the  filing  of  the 
bond  is  one  of  the  steps  made  requisite. 
But  there  are  other  provisions  of  the 
code  which  require  consideration,  not- 
ably   the   provision  which    reads    thus: 


"  No  appeal  shall  be  dismissed  for  any 
informality  or  defect  in  the  transcript 
or  appeal  bond,  if  the  appellant  shall 
correct  the  informality  or  defect  within 
a  reasonable  time."  R.  S.,  §  657.  If 
there  is  not  a  class  of  appeals,  wherein 
a  bond  is  required  as  essential  to  the  ap- 
peal, this  provision  respecting  the  bond 
is  utterly  meaningless,  but  that  conclu- 
sion can  not  be  reached  without  vio- 
lating elementary  principles  of  law. 
When  all  the  provisions  of  the  statute 
are  given  consideration  the  conclusion 
we  have  stated  seems  the  correct  one, 
and  it  is  certainly  the  only  doctrine 
upon  which  the  statutory  provisions 
can  be  fully  harmonized  and  an  unnat- 
ural and  violent  severance  of  the  ele- 
ments which  are  enumerated  as  essen- 
tial to  an  appeal  in  term  prevented. 

2  The  statute  secures  a  right  to  per- 
fect a  defective  or  incomplete  appeal, 
for  this  is  the  evident  purpose  of  section 

639- 

3  Goodwin  v.  Fox,  120  U.  S.  775, 
This  case  lays  down  what  seems  to  us 
to  be,  beyond  controversy,  the  true 
rule.  It  was  there  said:  "But  as  the 
bond  was  not  filed  until  after  the  term, 
a  citation  or  something  equivalent  was 
necessary  as  a  matter  of  procedure  to 
give  the  appellees  notice  that  the  appeal 


APPELLATE   I'ROCKDL'RE. 


of  avoiding  the  obligation  to  give  notice  is  by  an  appeal  in  term, 
and  unless  all  that  the  statutes  makes  necessary  to  an  appeal 
in  term  is  done,  there  is  no  appeal  under  the  statutory  provisions 
regulating  appeals  in  term.  One  of  the  chief  purposes  of  the 
ite  was  1 1 >  provide  a  mode  of  appeal  without  notice,  and  in 
the  place  of  notice  it  puts  the  acts  enumerated.  Upon  principle 
it  must  be  concluded  that  there  can  be  no  effective  appeal  in 
term  unless  all  the  essential  acts  required  by  the  statute  are 
performed,  and  this  conclusion  is  required  by  considerations  of 
expediency  and  fairness.  A  party  against  whom  an  appeal  is 
assumed  to  be  taken  in  term  has  a  right  to  presume  that  it  is 
waived  or  abandoned,  unless  the  party  who  assumes  to  prose- 
cute the  appeal  does  what  the  statute  requires,  and  this  as- 
sumption authorizes  him  to  remain  inactive.  The  failure  to  file  a 
bond  may,  of  course,  be  waived  by  a  joinder  in  error,  by  filing 
a  brief,  or  by  any  similar  act,  but  if  the  objection  that  no  bond 
was  filed  is  duly  made,  the  conclusion  must  be  that  the  appeal 
as  in  term  is  ineffective.  If,  however,  some  bond,  although 
an  informal  one,  has  been  filed,  it  will  save  the  appeal,  unless 
specially  objected  to,  and  even  then,  if  found  to  be  informal, 
the  court  may  allow  a  reasonable  time  to  file  another  bond.1 
If  the  appealing  party  attempts  to  file  a  bond  within  the  time 
limited  he  puts  himself  in  a  position  very  different  from  that 


which  had  been  allowed  in  term  time 
had  not  been  abandoned  by  the  failure 
to  furnish  the  security  before  the  ad- 
journment." The  court  cited  Dodge  v. 
Knowles,  114  U.  S.  430;  Hewitt  v.  Fil- 
bert, 116  U.  S.  142.  The  principle  as- 
serted by  us  is  that  embodied  in  Rules 
I  .Mid  II  of  the  Supreme  Court,  for 
those  rules  can  not  be  construed  as  dis- 

ing  with  the  necessity  of  filing  a 
bond   in  order  to  perfect  an   appeal   in 

.  for  a  rule  of  court  can  not  stand 
against  a  valid  statute.     The  effect  of 

rules  referred  to  is  to  permit  an  ap- 
peal   upon   notice  where  the   appeal  in 
term  is  ineffective.     Ante.  §  247,  note. 
1  P.i^ler    v.    Waller,     12    Wall.     142; 

ard    V.    Corneau,    I02-    U.    S.    161; 


O'Reilly  v.  Edrington,  96  U.  S.  724; 
New  Orleans  Ins.  Co.  v.  Albro  Co..  1 1 2 
U.S.  506.  ThecaseofHadley  r.  Hill,  7,5 
Ind.  442,  does  not  decide  that  there  may 
be  an  appeal  in  term  without  a  bond, 
hut  does  decide  that  the  failure  to  file 
the  transcript  within  sixty  days  does 
not  destroy  the  effectiveness  of  the  ap- 
peal. Even  this  is  questionable  doc- 
trine. The  decision  in  Mitchell  V. 
Gregory,  94  Ind.  36^  was  not  directed 
to  the  question  of  the  right  to  appeal  in 
term  without  giving  bond,  but  to  the 
effect  of  an  appeal  where  there  was 
a  failure  to  give  bond,  and  it  was  held 
that  the  appeal  did  not  preclude  the 
plaintiff  from  taking  out  an  execution. 
June  V.  Payne.  107  Ind.  307. 


MODES  OF  APPEAL   IN   CIVIL   ACTIONS.  213 

which    he  would  occupy  if  he  had    entirely  disregarded    the 
statutory  provision  requiring  a  bond!1 

§  250.  Appeals  after  Term — The  second  class  of  appeals  from 
final  judgments  in  civil  actions  may  be  designated  as  "Appeals 
after  Term."  As  is  evident  from  what  we  have  already  said, 
the  essential  difference  detween  an  "Appeal  in  Term  "  and  an 
"Appeal  after  Term  "  is  that  in  the  one  there  must  be  a  bond 
but  there  need  not  be  notice,  while  in  the  other  there  must  be 
notice2  but  there  need  not  be  a  bond.3  It  may  be  safely  said 
that  notice  is  indispensable  to  the  effectiveness  of  an  appeal 
after  term.  This  statement  is  not  contravened  by  the  familiar 
rule  that  notice  may  be  waived  inasmuch  as  that  rule  concedes 
the  necessity  for  notice,  but  treats  the  waiver  as  its  equivalent. 
Where  there  is  no  effective  appeal  in  term  there  must  always 
be  notice,  or  that  which  is  equivalent  to  notice.4  There  is  a 
difference  between  cases  where  an  appeal  is  prosecuted  for  the 
purpose  only  of  reviewing  the  decisions  of  the  trial  court,  and 
cases  where  both  a  review  of  such  decisions  and  a  stay  of  pro- 
ceedings on  the  judgment  are  sought.  The  difference  is  an 
important  one,  inasmuch  as  a  bond  is  essential  to  secure  a  stay 
of  proceedings,  but  is  not  essential  to  an  appeal  taken  upon 
notice  where  no  stay  is  asked  or  desired. 

§  251.  Classes  of  Appeals  after  Term — Appeals  alter  term  are 
subdivided  into  two  classes:  i.  Appeals  upon  notice  issued 
and  served  below.  2.  Appeals  upon  notice  issued  and  served 
above.5  In  the  first  class,  notice  must  be  issued  and  served 
upon  the  adverse  party  and  also  upon  the  clerk.     In  the  second 

1  We  have  discussed  elsewhere  mat-  v.  The  Midland  R'y  Co.,  28  N.  E. 
ters  connected  with  the  execution  of  ap-     Rep.  549. 

peal  bonds,  and  our  immediate  purpose  4  The  decisions  in  West  v.  Cavins,  74 

is  to  show  what  acts  must  be  done  in  Ind.  265;  Gilbert  r.Welsch,  75  Ind.  557, 

order   to    perfect    a   term-time    appeal,  and  Pedrick  v.  Post,  85  Ind.  255,  recog- 

See  R.  S.,  §  657.  nize  the  doctrine  of  waiver,  but  they  do 

2  R.  S.,  §  640.  not  hold  that  there  may  be  an  appeal 

3  Ruschaupt    v.    Carpenter,   63    Ind.  in  term  without  a  bond. 

359:    Burt  v.  Hoettinger,  2S   Ind.   214;         5  Opp     v.     Teneyck,    99    Ind.     345: 
Sturgis  v.  Rogers,  26  Ind.  1;  Holloran     Hays  v.  Wilstach,  101   Ind.  100;  R.  S., 

§  r'4°- 


•_•;  t  APPELL  \  TE  PR<  (CEDURE. 

class,  the  appealing  party  must  procure  a  transcript  of  the  rec- 
ord, file  it  in  the  office  of  the  clerk  of  the  Supreme  Court,  and 
cause  notice  to  be  issued.  It  is  essential  that  the  appeal  be 
perfected  within  the  time  prescribed  by  the  statute.  It  is  not 
enough  to  take  part  of  the  steps  required,  as,  for  instance,  to 
give  notice  of  the  appeal.  Upon  the  general  principle  (dis- 
cussed in  a  former  chapter)  that  appeals  must  be  taken  within 
the  time  limited,  it  is  necessary  to  do  all  that  the  law  requires  to 
be  done  within  the  time  designated.1  An  appeal,  to  repeat 
what  has  elsewhere  been  full}-  stated  and  amplified,  must  be 
completed  within  the  time  allowed  or  it  will  not  be  effective. 
While  it  is  true  that  an  appeal  is  not  perfected  until  all  the  ma- 
terial acts  required  by  law  are  done  as  the  law  prescribes,  it  is 
true,  nevertheless,  that  an  ineffectual  effort  to  appeal  in  one 
mode  does  not  necessarily  preclude  an  appeal  in  another  mode, 
provided,  of  course,  the  time  for  all  modes  of  appeals  has  not 
expired.  The  provisions  of  the  statute,  the  rules  of  court,  and 
the  general  principles  of  law  heretofore  considered,  save  the 
rights  of  aggrieved  parties  in  cases  where  there  is  a  dismissal  of 
an  appeal  for  irregularities  or  informalities  in  taking  it.2  A 
mere  informality  or  irregularity  may,  indeed,  often  be  corrected 
and  the  particular  appeal  saved.3 

§  252.   Civil    Action — Definition — In    matters    connected    with 

1  For  a  discussion  of  the    subject  of  126,  that  an  appeal  is   perfected   when 

notice   to   parties,   see    "  Time   within  the  transcript  is  filed  can  not  be  recon- 

which  an  appeal  must  be  taken,"  "  Pro-  ciled  with  the  earlier  or  later  authori- 

Chapters  VI,  VIII.    Johnson  v.  ties,  nor  with   principle,  bul    it  is  true 

Stephenson, 104  Ind.36S,  4N.  E.  Rep.  46.  that  until  the  transcript  is  filed  there  is 

In  Lange  v.  I  hummer,  1  [9  Ind.  567, 1 1  N.  no  appeal. 

I  Rep.  33,  it  was  said:  "  This  court  can  2  R.  S.,  §§  639,  657;  Rules  I  and  II. 
m.t  acquire  jurisdiction  of  any  appeal  3  R.  S.,  §  657.  But  the  fight  to  amend 
unless  the  same  be  taken  and  perfected  or  correct  mere  irregularities  does  not 
within  the  time  and  in  the  manner  pre-  depend  solely  upon  statutory  provisions 
scribed  bylaw."  We  quote  from  this  or  rules  of  court,  for  it  is  always  within 
case,  although,  because  of  an  error  in  the  the  power  of  an  appellate  tribunal  to 
record,  tlie  opinion  was  subsequently  prevent  the  failure  of  justice  by  permit- 
withdrawn,  for  the  reason  that  it  states  ting  corrections  or  amendments,  al- 
the  rule  clearly  and  correctly.  I  lender-  though  it  can  not  heal  errors  that  go  to 
son  v.  Halliday,  10  Ind.  J4;  Bacon  v.  the  jurisdiction  of  the  subject.  A  party 
Witherow,  no  Ind.  94.  The  statement  who  asks  a  correction  must,  however, 
in    Harshman    t.   Armstrong,  43    Ind.  be  diligent  and  prompt. 


MODES  OF  APPEAL   IN   CIVIL   ACTIONS. 


215 


procedure  the  term  "civil  action"  has  a  very  wide  and  com- 
prehensive signification.  The  code  declares  that  there  shall 
be  but  one  form  of  action  and  that  it  shall  be  denominated  "  a 
civil  action."  '  It  is  declared  that  the  distinction  between  ac- 
tions at  law  and  suits  in  equity  is  abolished,  but  this  declaration 
does  not  change  the  substantive  rights,2  for  there  are  still  equi- 
table and  legal  rights  and  equitable  and  legal  titles.3  Rights 
are  beyond  legislative  reach  except  by  a  complete  and  rigid 
reduction  of  all  principles  to  statutory  provisions.  Nor  do  the 
provisions  of  the  code  fully  sweep  away  the  distinction  between 
law  and  equity  in  matters  of  procedure,  for  it  has  been  again 
and  again  decided  that  where  a  party  has  an  adequate  legal 
remedy  he  can  not  invoke  an  equitable  one.4  So,  too,  modes 
of  trial  are  different ;  purely  equitable  suits  are  triable  bv  the 
court  while  actions  at  law  are  triable  by  a  jury.5  Where  the 
facts  fully  appear  and  are  such  as  to  entitle  the  plaintiff  to  re- 
lief upon  the  theory   assumed   relief  may  be   awarded,6  but  a 

1  R.  S.,  §  249;  Bixel  v.  Bixel,  107  S3  Ind.  48.  See  McWhorter  v.  Helt- 
Ind.  534;    Hart  v.  Barnes,  24  Neb.  7S2,     zell.  124  Ind.  129. 

40  N.  W.  Rep.  322;     Omaha,  etc.,  Co.         *  Shoemaker  v.  Axtell,  78  Ind.  561; 

v.  Tabor,  13  Col.  41,  21  Pac.  Rep.  925.  Sims  v.  City  of  Frankfort,  79  Ind.  446; 

2  Scott  v.  Crawford,  12  Ind.  410;  Marshall  v.  Gill.  77  Ind.  402;  Kvle  v. 
Woodward  v.  Leavenworth,  14  Ind.  Frost,  29  Ind.  3S2;  Miller  v.  City  of 
311;  Matlock  v.  Todd,  25  Ind.  12S;  Indianapolis,  123  Ind.  196;  Bas-  - 
Dixon  v.  Caldwell,  15  Ohio  St.  412, 415.  City  of  Fort  Wayne,  121  Ind.  3S9; 
In  the  case  last  cited  it  was  said,  "The  Smith  v.  Goodknight,  121  Ind.  312. 
distinction  between  legal  and  equitable  5  Kitts  v .  Willson,  106  Ind.  147;  Deig 
rights  exists  in  the  subject  to  which  v.  Moorhead,  no  Ind.  451;  Lake  Erie. 
they  relate,  and  is  not  affected  by  the  etc.,  Co.  v.  Griffin,  92  Ind.  4S7;  Platter 
form  or  mode  of  procedure  that  may  be  v.  Board  of  Commissioners,  103  Ind. 
prescribed  for  their  enforcement.  The  360;  Lane  v.  Schlemmer.  114  Ind.  296; 
code  abolished  the  distinction  between  Rogers  v.  Union  Central  Life  Ins.  Co., 
actions  at  law  and  suits  in  equity,  and  1 11  Ind.  343;  Stix  v.  Sadler,  109  Ind.  2  54. 
substituted  in  their  place  one  form  of  Where  parties  act  upon  the  theory 
action;  yet  the  rights  and  liabilities  of  that  the  case  is  triable  bv  a  jury,  no 
the  parties,  legal  and  equitable,  as  dis-  question  can  be  made  on  appeal  as  to 
tinguished  from  the  mode  of  procedure  mode  of  trial.  Summers  v.  Greathouse, 
remain  the  same  since,  as  before,  the  S7  Ind.  205;  Sprague  v.  Pritchard.  10S 
adoption  of  the  code."  See  Emmons  v.  Ind.  491;  Jarboe  v.  Severin,  112  Ind.  572. 
Kiger,  23  Ind.  4S3;  Ricketts  v.  Dorrell,  6  Grissom  v.  Moore.  106  Ind.  296; 
55  Ind. 470.  Blair  t.  Smith.   114  Ind.  114;     Bonnell 

3  Stout  v.  McPheeters,  84  Ind.  585;  v.  Allen,  53  Ind.  130:  Troost  v.  Davis, 
Stehman  v.  Crull,  26  Ind.  436;  Rowe  31  Ind.  34.  See  East  v.  Peden.  10S 
v.    Beckett,    30    Ind.     154;     Groves    v.  Ind.  92. 

"larks,  32  Ind  319;   Hunt  v.  Campbell, 


216  APPELLATE  PR(  >CEDURE. 

definite  theory  must  be  adopted  and  the  pleading  must  be  good 
upon  that  theory.1  In  the  cases  decided  in  the  early  years  of 
the  code  system  there  is  apparent  a  purpose  to  make  classes  of 
what  the  court  called  special  proceedings  and  thus  keep  up,  in 
some  measure,  the  distinction  between  statutory  actions  and 
ordinary  actions  or  suits.  There  was  very  little  strength  in  the 
reasoning  of  any  of  these  cases  and  the  doctrine  they  asserted 
is  exploded  by  the  later  decisions.2  The  tendency  of  the  later 
cases  is  to  unify  all  proceedings  and  give  the  code  the  effect  it 
was  intended  to  have,  for  it  is  evident  that  the  intention  was 
not  to  multiply  classes  of  action  nor  to  recognize  old  forms,  but 
to  provide  for  one  action  and  a  uniform  system  of  procedure.3 
While  the  subject  we  have  been  considering  is  more  directly 
connected  with  trial  court  practice  than  with  appellate  proced- 
ure, yet  it  is  so  connected  with  the  preparation  for  appeal  and 
with  the  practice  on  appeal,  that  it  is  almost  impossible  to  con- 
sider appellate  procedure  without  some  discussion  of  the  sub- 
ject. 

§  253.  What  cases  are  Appealable  as  Civil  Actions — There  is,  in 
this  State,  only  one  remedy,  as  elsewhere  said,  for  the  review 
of  a  judgment  by  the  appellate  tribunals,  and  that  is  by  appeal, 
so  that  where  there  is  a  right  to  such  a  review  there  can  be  no 
doubt  as  to  the  remedy,  but  the  modes  of  procedure  are  differ- 

1  May  v.  Reed,  1 2  q  Ind.  199;  Pearson  and  that  all  such  actions  as  were  not 
v.  Pearson,  12^  Ind.  341;  Trentman  v.  criminal  must  necessarily  fall  under 
Neil',  [24  lnil.  503;  Bingham  v.  Stage,  the  denomination  civil  .action,  hut  the 
1 23  hid.  281,  and  cases  cited  p.  2S5;  Supreme  Court  has  held  otherwise." 
Wagner  v.  Winter,  12:  Ind.  57;  Rahm  1  Works'  Ind.  Practice.  122.  As  will 
:  .  1  >eig,  1  2  1  Ind.  2S3;  Brown  v.  Nichols,  be  shown  elsewhere  the  later  cases  fully 

Co.,  123  Ind.  492, 24 N.  E. Rep. 339;     sustain  the  views  expressed  by  Judge 
Camp  v.  Smith,  117  N.  Y.  354,  22  N.  E.     Works. 
Ri  p.  [ 044;  Coffin  V.ArgO,  134111.276,24  3  It  by  no  means  follows  that  because 

\    E.  Rep.  to68;   Spies  v.  Chicago, etc.,  a  right  is  created  by  a  statute  that  there 

Co.,  |0  Fed.  Rep.  34;  Olmstead  v.  Ah-  is  also  created  a  special  proceeding.     If 

bott,  61  Vt.  2Si,iS  Atl.Rep.315;   Indi-  it  were  true  that  the  creation  of  a  stat- 

ana,  etc..  Co.    v.   Quick,    109   Ind.  295.  utory  right  made  a  special  proceeding 

2  Judge  Works  in  his  very  able  book  then  we  should  have  many  civil  actions 
says,  "It  would  seem  clear  from  the  and  many  and  diverse  criminal  prose- 
language  used  that  there  could  be  but  cutions. 

two  forms  of  action,  civil  and  criminal, 


MODES   OF  APPEAL   IN   CIVIL   ACTIONS. 


217 


ent.  The  great  majority  of  cases  are  appealable  as  civil  ac- 
tions and  the  cases  not  so  appealable  are  exceptions  to  the 
general  rule.  It  is  safe  to  say  that  all  controversies  respect- 
ing civil  rights  and  liabilities  are  appealable  as  civil  actions,1 
whether  they  arise  under  special  statutes  or  not,  except  where 
some  provision  respecting  the  appeal  is  made  by  the  statute  for 
such  special  cases.2     The  limitation  placed  upon  the  meaning 


1  There  must  be  a  contest  concerning 
civil  rights,  and,  as  a  general  rule,  there 
must  be  adversary  parties.  Johnson  v. 
Malloy,7-|.Cal.  430;  Thomas  v.  Musical, 
etc.,  LTnion,  121  N.  Y.  45,  S  Lawyers' 
Rep.  Anno.  175;  Gilmore  v.  Board,  35 
Ind.  344;  Brown  v.  Grove,  n6Ind.S4; 
Pressley  v.  Harrison,  102  Ind.  14;  Kun- 
dolf  v.  Thalheimer,  12  N.  Y.  591,  596; 
Deer  Lodge  v.  Kohrs,  2  Mont.  66,  70; 
Ableman  v.  Booth,  11  Wis.  499,  516; 
Ex  parte  Towles,  4S  Texas,  413,  433; 
State  v.  One  Bottle  of  Brandy,  43 
Vt.  297;  Martin  v.  Hunter's  Lessee, 
1  Wheat.  35;  Osborn  v.  United  States 
Bank,  9  Wheat.  73S,  S19;  Wayman 
v.  Southard,  10  Wheat.  1,  30.  It  is 
upon  the  general  principle  that  there 
must  be  adverse  parties,  that  it  is  held 
that  where  a  defendant  actually  begins 
and  controls  the  case  no  valid  judg- 
ment can  be  rendered.  Brown  v.  Grove, 
116  Ind.  S4;  Gresley  v.  State,  123  Ind. 
72.  See  State  v.  Green,  16  Iowa,  239; 
Watkins  v.  State,  6S  Ind.  427;  Halloran 
r.  State,  So  Ind.  5S6;  State  Bank  v.  Ab- 
bott, 20  Wis.  599;  Strang  v.  Beach.  11 
Ohio  St.  2S3.  Real  parties  are  essen- 
tial. Nicholson  v.  Stephens,  47  Ind. 
1S5;  Brewington  v.  Lowe,  1  Ind.  21. 

2  A  reference  to  some  of  the  cases  de- 
claring  what  shall  be  considered  civil 
actions  may  serve  to  illustrate  and  en- 
force the  statements  of  the  text.  A 
prosecution  under  the  statute  regulat- 
ing proceedings  in  bastardy  cases  is  a 
civil  action,  although  a  peculiar  one. 
State  v.  Brown.  44  Ind.  329;  Abshire  v. 
State,  52  Ind.  99.     Actions  to  recover 


statutory  penalties  are  civil  actions 
within  the  meaning  of  the  code.  City 
of  Hammond  v.  New  York,  etc.,  Co., 
126  Ind.  597;  City  of  Greely  v.  Han- 
man,  12  Col.  94,  20  Pac.  Rep.  1: 
Durham  v.  State,  117  Ind.  477;  West- 
ern Union  Tel.  Co.  v.  Scircle,  103 
Ind.  227;  United  States  v.  Hoskins, 
5  Mackey,  47S.  So  are  proceedings 
in  highway  cases.  Schmied  v.  Keeney, 
72  Ind.  309.  Claims  against  dece- 
dents' estates  were  held  to  be,  in  some 
respects,  civil  actions.  Lester  v.  Les- 
ter, 70  Ind.  201.  Informations  in  the 
nature  of  quo  -warranto  are  civil  actions 
under  our  decisions.  Reynolds  V.  State, 
61  Ind.  392;  Bank  of  Vincennes  v.  State, 
1  Blackf.  267.  So  are  proceedings  sup- 
plementary to  execution.  Burkett  v. 
Holman,  104  Ind.  6;   Burkett  v.  Bowen, 

104  Ind.  1S4,  and  cases  cited.  Baker  v. 
State,  109  Ind.  47;  Bostwick  v.  Bryant, 
113  Ind.  448;  American  White  Bronze 
Co.  v.  Clark,  123  Ind.  230;  McMahan 
v. Works,  72  Ind.  19.  So  is  a  motion  for 
leave  to  issue  execution.  Jaseph  v. 
Schepper,  1  Ind.  A  pp.  154,  27N.E  Rep. 
30  v  Suits  for  divorce  are  essentially, 
but  not  entirely,  civil  actions.  Simons 
t\  Simons,  107  Ind.  197;  Evans  V.  Evans, 

105  Ind.  204;  Powell  v. Powell,  104  Ind. 
iS.  Drainage  proceedings  are  civil  ac- 
tions so  far  as  questions  of  procedure  are 
concerned.  Bass  v.  Elliott,  105  Ind.  517, 
Neff  v.  Reed,  9S  Ind.  341;  Crume  v. 
Wilson,  104  Ind.  5S3.  These  cases  go 
very  far  towards  vindicating  if,  indeed, 
they  do  not  fully  vindicate,  the  state- 
ment of  Judge  Works,  that.  "  No  such 


218  APPELLATE   PROCEDURE. 

of  the  term  "civil  actions"  excludes  all  criminal  cases,  and 
the  provisions  made  for  appeals  in  probate  matters  exclude  all 
cases  within  the  scope  of  that  statute.  As  the  statute  makes 
express  and  special  provisions  for  appeals  from  interlocutory 
orders  such  orders  are  not  within  the  general  rule  stated  in  the 
present  chapter.  It  is  implied  in  what  has  already  been  said 
that  where  express  provisions  are  made  for  the  appeal  of  spe- 
cial cases,  such  cases  are  taken  out  of  the  general  rules  which 
govern  appeals  in  civil  actions  in  so  far  as  concerns  the  mode 
of  taking  and  perfecting  the  appeal,  and  it  follows,  as  of  course, 
that  appeals  in  such  cases  must  be  taken  and  prosecuted  under 
the  special  statutory  provisions.  It  may,  however,  be  said,  for 
the  sake  of  clearness,  although  at  the  expense  of  something 
like  repetition,  that  ordinarily  a  case  arising  under  a  special 
statute  is  for  the  purpose  of  appeal,  as,  indeed,  generally  for 
all  matters  of  procedure,  a  civil  action,1  but  this  rule  does  not 
apply  where  a  special  mode  of  taking  an  appeal  is  prescribed. 

thing  is  known  to  the  code  as  a  special  ceedings  whether  under  special  statutes 
proceeding.  It'  what  might  have  been  or  not.  unless  excluded  by  the  provis- 
called  special  proceedings  before  the  ions  of  the  act."  Et  was  also  said :  ''Stat- 
ion of  the  code  are  not  included  utes  are  to  beregarded  as  forming  parts 
in  the  statutory  definition  of  a  civil  ac-  of  one  great  and  uniform  body  of  Law, 
tion  there  is  no  rule  of  pleading  or  prac-  and  are  not  to  be  deemed  isolated  and 
tice  that  can  be  applied  to  them.  Our  detached  systems  complete  in  them- 
pleading  and  our  practice  are  governed  selves.  Humphries  :•.  Davis,  too  [nd. 
exclusively  by  the  code,  and  the  statute  274.  50  Am.  Rep.  78S;  Lutz  :•.  City  of 
affords  no  rules  of  practice  or  pleadings  Crawfordsville,  109  [nd.  400."  It  is 
in  special  proceeding."  1  Works  Ind.  certainly  true  thai  so  far  as  concerns 
Prac  120.  The  statements  of  the  learned  the  right  of  appeal  case-  are  regarded 
author  while  in  the  main  correct  need  as  civil  action-  and  are  appealable  as 
limitation,  or  rather  qualification,  such  unless  some  provision  is  made  b\ 
for  common  law  rules  are  often  called  statute  to  the  contrary.  The  unbroken 
to  the  aid  of  the  code  and  are  often  en-  practice  proves  this  to  be  true.  And, 
forced.  Shaw  v.  Merchants  National  it  may  be  added,  any  other  rule  would 
Bank,  60  Ind.  83;  Board  v.  Spitler,  13  involve  the  manifest  absurdity  of  hold  - 
Ind.  235;  Daws,  ,n  v.  Coflfman,  28  Ind.  ing  that  each  and  every  proceeding  has 
220.  annexed  to  it  a  peculiar  mode  of  appeal. 
1  In  Robertson  v.  Smith.  109  Ind.  ~<).  It  is  not  to  be  expected  that  specific 
07,  it  was  said:  "If.  however,  it  were  laws  shall  be  enacted  foreach  case;  on 
conceded  that  the  position  of  the  appel-  the  contrary  laws  lay  down  general 
lee  is  tenable,  still,  it  would  by  no  means  rules,  and  they  prevail  unless  some  dif- 
result  that  section  312  does  not  apply,  ferent  rule  applicable  to  the  particular 
for  i'  is  now  well  settled  that  the  pro-  class  of  cases  i-  shown  to  exist 
visions  of  the  code  do  apply  to  all  pro- 


CHAPTER  XIV. 

APPEALS  IN   MATTERS  CONNECTED   WITH   DECEDENTS' 

ESTATES. 


§  254.    Thfe  special  statute  does  not  cre- 
ate  an    entirely    independent 

system. 

255.  What  cases  are  governed  by  the 

statute    respecting   decedents' 
estates. 

256.  Cases  held  not  to  be  within  the 

special  statute. 

257.  Cases  within  the  statute. 

258.  The  conflict  in  the  decisions. 

259.  Construction  of  the  statute. 

260.  Effect  of  the  construction  sug- 

gested. 


261.  Time  for  appealing. 

262.  What  the  appellant  must  do  to 

perfect  the  appeal. 

263.  Extension  of  time. 

264.  Steps  essential  to  secure  an  ex- 

tension of  time. 

265.  Notice  of  the  application  for  an 

extension  of  time. 

266.  Briefs  on  the  application. 

267.  Bond   must    be  filed  within  the 

time  limited. 
26S.    Intermediate  decisions   and    in- 
terlocutory orders. 


§  254.  The  Special  Statute  does  not  create  an  entirely  independ- 
ent system — The  statute  provides  a  mode  of  procedure  for  ap- 
pealing in  cases  "growing  out  of  any  matter  connected  with  a  de- 
cedent's estate,"1  but  the  system  provided  is  not,  in  the  strict 
sense,  an  entirely  independent  one.  The  provisions  of  the  code 
respecting  the  mode  of  taking  appeals  in  civil  actions  do  not  in 
all  respects  apply  to  appeals  in  matters  connected  with  dece- 
dents' estates,  but  the  appeal  from  decisions  in  such  matters  must 
be  taken  under  the  special  statutory  provisions.2  While  it  is 
true  that  the  appeal  must  be  taken  in  accordance  with  the  pro- 
visions of  the  special  statute,  it  is  also  true  that  the  procedure 
is  to  a  very  great  extent  governed  by  the  general  rules  which 


^  1  R.  S.,  §§  2454,  2455,  2456.  2457;   El- 
liott's Sup.,  §  417. 

2  State  v.  Hughes,  15  Ind.  104;  Thie- 
baud  v.  Dufour,  57  Ind.  59S;  Seward  v. 
Clark,  67  Ind.  289;  Bell  v.  Mousset,  71 
Ind. 347;  Rinehart  w.Vail,  103  Ind.  159; 
Taylor  v.  Burk,  91  Ind.  252;  Bartlett's 
Appeal,  82  Me.  210,  19  Atl.  Rep.  170; 

(219) 


Bake  v.  Smiley,  84  Ind.  212;  Weil  v. 
Cavins,  74  Ind. 265;  McCurdy  r.  Love, 
97  Ind.  62;  Browning  v.  McCracken, 
97  Ind.  279;  Bennett  v.  Bennett,  102 
Ind.  S6;  Walker  v.  Steele,  121  Ind.  436. 
The  doctrine  of  Hamlvn  v.  Nesbit,  37 
Ind.  2S4,  is  overruled  by  the  later  cases. 


220  APPELLATE  PROCEDURE. 

obtain  in  civi!  actions.  The  special  statute  can  not  be  deemed 
to  create  an  entirely  independent  system,  although  itdoes  make 
peculiar  provisions  respecting  the  mode  of  taking  an  appeal,1 
for,  as  to  the  assignment  of  errors  and  matters  of  a  similiar 
nature,  appeals  under  the  special  statute  are  governed  by  the 
general  rules  of  procedure. - 

:  255.  What  Cases  are  governed  by  the  Statute  respecting  Dece- 
dents' Estates — The  question  as  to  what  cases  fall  within  the  stat- 
utory provisions  referred  to  in  the  preceding  paragraph  has 
evoked  much  discussion,  and  it  is  not  easy  to  lay  down  a  gen- 
eral rule  with  certainty  or  precision.  There  can,  of  course, 
be  no  difficulty  in  determining  the  question  where  the  contro- 
versy directly  involves  the  rights  of  the  administrator  or  exec- 
utor as  such  irrespective  of  collateral  or  appendant  interests, 
and  where  it  can  not  be  adjudicated  without  directly  passing 
upon  such  rights  ;  but,  while  this  is  true,  it  is  also  true  that  it  is 
by  no  means  every  case  that  falls  within  what  is  sometimes 
called  probate  jurisdiction,  that  can  be  appealed  under  the 
special  statute.3  It  is  safe  to  say  that  one  who  acts  upon  the 
assumption  that  all  cases  connected  with  matters  within  the 
jurisdiction  of  probate  courts  are  within  the  special  statute  will 
be  led  into  error.  To  say,  as  is  sometimes  done,  that  all 
probate  cases  are  appealable  under  the  special  statute  is  to  state 
the  rule  entirely  too  broadly.4  General  statements  can  not  con- 
vey an  accurate  or  adequate  conception  of  the  law  upon  the  sub- 
ject of  appeals  under  the  statute  as  declared  by  our  decisions, 
It  is,  indeed,  not  possible  to  secure  a  clear  and  full  view  of  the 
scope  and  effect  that  has  been  assigned  to  the  statute  without 
considering  the  decided  cases  somewhat  in  detail. 

§  256.  Cases  held  not  to  be  within  the  Special  Statute — It  will 
best  serve  to  show  the  scope  and  effect  of  the  statute  by  first 
considering  the  cases  which  have  been  held  not  to  fall  within 

1  Scherer  i>.  Ingerman,  no  Ind.-pS.  3  Rush  v.  Gray,  74  Ind.  231;  Willson 

2  The  special    statute  applies  to  the     v.  Binford,  74  End.  424. 

time  and    mode  of  taking   the   appeal        *  Jurisdiction  of  Probate  Courts,  3  So. 
rather  than  to  the  procedure  after  the     Law  Rev.  (N.  S.)  254-267. 
appeal  is  perfected. 


DECEDENTS'  ESTATES.  221 

it,  and  then  considering  those  which  have  been  held  to  be 
embraced  within  its  provisions.  A  suit  by  an  executor  to  ob- 
tain the  construction  of  a  will  has  been  held  not  to  be  within 
the  statute.1  Actions  by  an  administrator  to  recover  money  on 
a  contract  have  been  held  not  to  be  appealable  under  the  special 
statutory  provisions.2  A  proceeding  prosecuted  by  the  creditor 
of  a  legatee  for  the  purpose  of  reaching  money  in  the  hands  of 
an  administrator  due  the  legatee  is  appealable  as  a  civil  action.3 
Another  case  holds  that  a  proceeding  by  an  administrator  to 
recover  as  assets  a  note  and  mortgage  assigned  by  the  decedent 
is  not  appealable  under  the  special  statute.4  Where  the  action 
is  begun  before  the  death  of  the  intestate  an  appeal  must  be 
prosecuted  under  the  statute  governing  appeals  in  civil  actions.5 
An  action  by  an  administrator  to  enforce  a  contract  is  held  not 
to  be  within  the  statute  respecting  decedents'  estates.6  One  who 
is  made  a  party  to  an  action  against  an  administrator  founded 
upon  a  contract  in  which  he  is  not  jointly  bound  may  appeal 
under  the  provisions  of  the  code  regulating  appeal  in  civil  ac- 
tions.7 An  appeal  is  to  be  prosecuted  under  those  provisions 
in  a  case  where  an  administrator  is  made  a  party  in  proceed- 
ings supplementary  to  execution  to  answer  as  to  money  in  his 
hands  belonging  to  the  debtor.8  A  case  can  not  be  brought  un- 
der the  special  statute  relating  to  decedents'  estates  by  joining 
an  administrator  as  a  party.9  An  action  commenced  during 
the  life  of  the  decedent  and  prosecuted  by  the  administrator 
after  the  intestate's  death  must  be  prosecuted  under  the  statute 
governing  appeals  in  civil  actions.10 

§  257.  Cases  within  the  Special  Statute — In  considering  the 
cases  which  affirm  that  appeals  must  be  taken  under  the  special 

1  Simmons  v.  Beazel.  125  Ind.  362.  6  Hillenberg  v.  Bennett,  8S  Ind.  540; 

2  Heller  v.  Clark,  103  Ind.  591;  Dill-  Willson  v.  Binford,  74  Ind.  424;  Rush 
man  v.  Dillman,  90  Ind.  585;  Yearlev  v.  v.  Gray,  74  Ind.  231.  But  is  this  not  a 
Sharp,  96  Ind.  469.  matter  connected  with  the   settlement 

3  Koons  v.  Mellett,  121  Ind.  585.  of  a  decedent's  estate? 

4  Walker  v.  Steele,  121  Ind.  436.  T  Claypool  v.  Gish,  10S  Ind.  424; 
This  case  and  that  first  referred  to  in  Wright  v.  Manns,  m  Ind.  422. 

this    paragraph   of  the  text   carry   the  8  Dillman  v.  Dillman.  90  Ind.  585. 

doctrine  very  far,  and  their  soundness  9  Claypool  v.  Gish,  10S  Ind.  4:4 

may  well  be  doubted.  10  Heller  v.  Clark,  103  Ind.  591. 

5  Heller  v.  Clark,  103  Ind.  591. 


APPELLATE   PROCEDURE. 

statute,  we  shall  particularly  notice  only  those  which  possess 
peculiar  features.  A  case  extending  the  provisions  of  the 
statute  very  far  may  appropriately  be  first  considered.  The 
to  which  we  refer  was  a  proceeding  by  mandamus  to  com- 
pel the  sale  of  real  estate.  The  surviving  partner  resisted  the 
application  and  it  was  held  that  the  case  was  not  appealable  as 
a  civil  action  but  must  be  appealed  under  the  special  statute.1 
A  proceeding  based  upon  a  petition  to  set  aside  the  final  report 
of  an  administrator  must  be  appealed  under  the  special  statute, 
and  can  not  be  appealed  as  an  ordinary  civil  action.-  A  like 
rule  applies  to  a  proceeding  founded  on  a  petition  for  the  sale 
of  real  estate  of  which  the  decedent  died  the  owner.3  A  similar 
rule  applies  to  cases  where  a  widow  petitions  for  her  allowance 
out  of  her  deceased  husband's  estate.1  An  ordinary  claim  filed 
against  an  administrator  or  executor  by  a  creditor  of  the  de- 
cedent must  be  appealed  from  as  the  special  statute  provides.5 

§  258.  The  Conflict  in  the  Decisions — It  is  evident  that  there  is 
not  only  confusion  among  the  decided  cases,  but  that  there  is 
conflict.  There  must  be  a  reformation  of  some  of  the  doctrines 
and  a  straightening  of  the  lines,  or  else  the  confusion  will 
deepen  as  the  decisions  multiply.  Some  general  principle  must 
be  sought  and  found  before  the  conflict  can  be  removed  and 
the  confusion  cleared  away.  We  venture  to  suggest  that  the 
principle  which  will  lead  to  a  just  result  is  to  be  found  in  some 
such  statement  as  this  :  Where  the  controversy  is  connected 
with  a  decedent's  estate,  and  an  adjustment  of  the  controversy 
is  essential  to  a  final  settlement  of  the  estate,  the  appeal  must 
be  taken  under  the  special  statute  ;  otherwise,  under  the  general 

1  Bennett    v.    Bennett,    [02    End.   86.  '  Webb    v.    Simpson,    105    Ind.  327; 

The  decision  in  the   (  ase   cited   can  not  Taylor   v.    Burk,  91    Ind.   252;    West  V. 

he   harmonized  with    the  decisions    in  Cavins,  74  Ind.  265. 

some  of  the  other  cases,  but  we  think  it  8  Rinehart    v.    Vail,    103    Intl.    159; 

sound.     The  error,  as  it  seems  to  us,  is  Hunter  v.  French,  S6  Ind.  320. 

in  the  decisions  which  unduly  limit  the  4  Bender*.  Wampler,  84  Ind.  172. 

of  the  special  statute,  and  not  in  5  Miller  :■.  Carmichael,  98  Ind.  236; 

those  which  give  it  a  construction  that  Jones  v.  Jones,  91  Ind.  378.     See  Taylor 

it  so  operate  as  to  secure  prompt  V.  Burk,  91   Ind.  252. 
appeals   in   matters   affecting  the  settle- 
ment of  decedents'  estates. 


DECEDENTS'  ESTATES.  223 

statute  regulating  appeals  in  civil  actions.  The  object  of  the 
statute  is  to  require  parties  to  appeal  promptly,  and  thus  prevent 
delay  in  the  settlement  of  estates.1  This  is  plainly  so,  for  if 
this  was  not  the  object  of  the  legislature  then  there  was  no 
necessity  for  such  a  statute,  inasmuch  as  the  general  statute  is 
sufficient  for  all  other  purposes.  It  is  not  to  be  assumed  that 
the  legislature  had  no  definite  object  in  view  in  enacting  the 
statute,  since  that  would  be  to  declare  that  the  law  makers  did 
a  vain  and  idle  thing,  and  this  declaration  can  not  be  made 
without  a  violation  of  rudimental  principles. 

§  259.  Construction  of  the  Statute — The  language  of  the  orig- 
inal act  is  comprehensive,  for  it  is  this:  "Any  person  consid- 
ering himself  aggrieved  by  the  decision  of  any  circuit  court  or 
judge  thereof  in  vacation,  growing  out  of  any  matter  connected 
with  a  decedent's  estate  may  prosecute  an  appeal,"2  and  there 
is  no  valid  reason  for  restricting  this  language  so  as  to  thwart 
the  salutary  policy  of  the  law  that  decedents'  estates  shall  be 
promptly  settled.  The  amendatory  act  of  1885  evinces  a  plain 
intention  to  secure  prompt  appeals,  for  it  declares  that  the  tran- 
script shall  be  filed  in  the  office  of  the  clerk  of  the  Supreme 
Court  within  thirty  days  after  filing  the  bond  and  provides  that 
the  bond  shall  be  filed  within  ten  days.3  It  seems  to  us  that 
instead  of  limiting  the  scope  of  the  statute  the  courts  should 
extend  it  so  as  to  give  just  effect  to  the  manifest  purpose  of  the 
law  to  secure  the  prompt  settlement  of  the  estates  of  decedents. 
There  certainly  is  no  right  to  limit  the  statute  so  as  to  obstruct 
the  operation  of  the  salutary  rule  of  which  we  have  spoken,  for 

1  In  Sewara  v.  Clark,  Adm.,  67  Ind.  spirit,  as  well  as  the  words  of  the  decis- 
2S9.  it  was  justly  said:  "  It  is  very  clear,  ions,  very  clearly  prove  that  the  object 
we  think,  that  the  legislature  never  in-  of  the  law  is  to  secure  a  speedy  settle- 
tended  that  the  settlement  of  decedents'  ment  of  estates  and  the  distribution  of 
estates  might  be  delayed  and  embar-  the  assets  to  creditors,  legatees  and 
rassed  by  appeals  to  this  court."  So,  heirs.  The  decisions  which  oppose  this 
in  Miller  v.  Carmichael,  9S  Ind.  236,  it  settled  doctrine  can  not  be  sound.  The 
was  said:  "The  object  of  the  statute  doctrine  is  affirmed  in  other  cases. 
Was  to  cut  off  delays  in  litigating  mat-  Miller  v.  Carmichael,  9S  Ind.  236,  and 
ters  affecting  decedents'  estates,  and  cases  cited, 
expedite  final  settlement  of  estates."  2  R.  S.,  §  2534. 
The  provisions  of  the  statute,  and  the  3  Elliott's  Supp.,  §  417. 


224  APPELLATE  PROCEDURE. 

the  authorities  strongly  assert  that  appeals  in  matters  connected 
with  the  settlement  of  decedents'  estates  must  be  taken  strictly 
within  the  time  and  in  the  mode  prescribed  by  law.1 

§  260.  Effect  of  the  Construction  suggested — The  application 
of  the  general  principle  we  have  ventured  to  suggest  can  work 
no  hardship  and  yet  will  secure  prompt  appeals  and  a  proper 
obedience  to  the  commands  of  the  law,  for  parties  will  know 
their  rights  and  certainty  will  prevail.  The  principle  stated 
requires  that  controversies  which  keep  open  an  estate  shall  be 
appealed  under  the  special  statute,  but  it  affects  no  others.  Thus, 
if  the  construction  of  a  will  is  essential  to  the  proper  discharge 
of  the  duties  of  an  executor  in  order  to  enable  him  to  settle  the 
estate,  then  the  appeal  should  be  prosecuted  under  the  statute,2 
but  if  he  can  pay  the  money  into  court  and  secure  a  final  order 
settling  the  estate  leaving  the  devisees,  legatees  or  heirs  to 
litigate  their  respective  claims  to  the  money  paid  into  court,  the 
case  is  not  within  that  statute  because  the  controversy  ceases  to 
be  connected  with  the  settlement  of  a  decedent's  estate.  It 
does  not,  at  all  events,  delay  settlement,  and  hence  is  not 
within  the  evil  sought  to  be  prevented.  If,  to  adduce  another 
illustration,  it  is  necessary  to  collect  a  note  as  part  of  the  assets 
of  the  estate,  the  case  is  within  the  statute  for  the  reason  that 
the  assets  must  be  collected  before  the  estate  can  be  closed. 
But,  without  multiplying  illustrations,  we  think  it  safe  to  affirm, 
in  view  of  the  provisions  of  the  statute  and  the  fundamental 
principles  of  law,  that  wherever  the  case  is  one  in  which  a  de- 
cision is  essential  to  the  prompt  settlement  of  a  decedent's  es- 
tate it  must  be  appealed  under  the  provisions  of  the  statute 
regulating  appeals  from  decisions  "growing  out  of  matters 
connected  with  a  decedent's  estate,"  and  not  under  the  general 

1  Dennison  v.  Talmage,  29  Ohio  St.  640;    Merrills    v.  Adams,    Kirby,  249; 

433, 435 ;  Morrow  v.Walker,io  Ark.  569;  Arterburn   v.  Young,   14    Bush    (Ky.), 

Briggs  v.  Barker,  [45  Mass.  2S7;  Peral-  509;  Holtzclaw  v.  Ware,  31  Ala.  307. 
tat;.  Castro,  15  Cal.  511;   Estate  ofCal-         2  We  know  that  some  of  the  decisions 

lahan,  on  Cal.  232;    Estate  of  Moore,  6S  indicate  a  different  doctrine,  hut  we  are 

Cal.  304:   Meyer  v.  Steuart,48  Md.423,  here  simply  suggesting  what  it  seems  to 

;:::    Mount  V.   Slack.  39   N.J.  Eq.  230;  us  should  he  the  rule. 
/;/  re  Fisher,  75  Cal.  $25,  17  Pac.  Rep. 


DECEDENTS'   ESTATES.  225 

statute  governing  appeals  in  ordinary  civil  actions.1  In  an  or- 
dinary civil  action  no  estate  is  kept  open  by  the  appeal,  but  in 
matters  affecting  the  settlement  of  decedents'  estates  an  estate 
is  kept  open  and  costs  and  expenses  are  augmented. 

.§  261.  Time  for  Appealing — The  general  rule  that  appeals 
must  be  taken  within  the  time  and  in  the  mode  prescribed  by 
law  is  strictly  applied  to  cases  where  appeals  are  taken  from 
decisions  in  probate  matters  connected  with  the  estates  of  de- 
cedents. The  decisions  declare  that  the  statutory  requirement 
can  not  be  dispensed  with  by  order  of  the  court.2  But  the 
statement  just  made  expresses  a  rule  subject  to  exceptions,  for 
the  statute  provides  for  an  extension  of  time  upon  cause  shown 
and  leave  duly  prayed.3  If  the  appealing  party  is  himself 
without  fault  and  he  is  prevented  from  appealing  within  the 
time  and  in  the  mode  prescribed  by  statute  by  the  fraud  of  the 
adverse  party,  or  by  the  fault  or  wrong  of  the  court  or  of  some 
officer,  then  under  the  inherent  power  resident  in  all  superior 
appellate  tribunals,  of  which  we  have  spoken,  he  may  be  re- 
lieved and  leave  may  be  granted  him  to  perfect  an  appeal.4 

§  262.  What  appellant  must  do  to  perfect  the  Appeal — The  acts 
which  the  appellant  must  perform,  or  cause  to  be  performed, 

1  The  majority  of  our  own  cases  sup-  Van  Slyke  v.  Schmeck,   io  Paige,  301; 

port  this  conclusion.  Yearley  v.  Sharp,  Lambert  v.  Merrill,  56  Vt.  464;   Mount 

96  Ind.  469;   McCurdy  v.  Love,  97  Ind.  v.  Slack,  39  N.  J.  Eq.  230;    Ahearn  v. 

62,  63;    Miller  v.  Carmichael,  98  Ind.  Mann,   63    N.   H.  330;     In    re    Mars- 

236;   Webb  v.  Simpson,   105   Ind.  327;  ton,   79   Me.  25;    Brewster  v.  Shelton, 

Rinehart  v.  Vail,  103  Ind.  159;  Brown-  24  Conn.  140.     In  Miller  v.  Carmichael, 

ing  v.  McCracken,  97  Ind.  279;  Ben-  98  Ind.  236,  the  question  is  treated  as 

nett  v.  Bennett.  102   Ind.  86:   Hunter  :■.  jurisdictional,  the  court  saving,  "  Want 

Trench,  S6  Ind.  320;   Bender  v.  Wamp-  of  jurisdiction  works  a  dismissal  of  the 

ler,  S4  Ind.  172;   Jones  v.  Jones,  91  Ind.  case  at  any  stage  of  the  proceedings." 

37S;  Taylor  v.  BurK,  91  Ind.  252.     The  See,  also,  authorities  cited  in  Chapter 

view  we  have  taken  is  strongly  support-  XIII;    "  Modes  of  Appeal  in  Civil  Ac- 

ed  by  the  reasoning  of  Judge  Works.    2  tions." 

Works'  Ind.  Prac,  §  1096.  3  Elliott's  Supp.,  §  417. 

*  Rinehart  v.  Vail,  103  Ind.  159.     See  *  Mount   v.  Van  Ness,  34  N.  J.  Eq. 

"Time  within  which  Appeals  maybe  523;  Biddison   v.  Moseley,  57   Md.  89, 

Taken."    Heckert's  Appeal.  13  Sergt.  &  92;    Bensley  v.  Haeberle,  20  Mo.  App. 

R.4S;  Claypoolr;.  Norcross,  36N.J.  Eq.  64S.     See,  ante,  §§  113,  114,  115,  116. 
524;    Morrow  v.  Walker,  10  Ark.  569; 

15 


226 


APPELLATE   PROCEDURE. 


in  order  to  perfect  an  appeal  in  cases  affecting  the  estate  of  a 
decedent,  are  these:  i.  A  bond  must  be  tiled  within  ten  days 
after  the  decision  is  made.  2.  The  transcript  must  be  filed 
in  the  office  of  the  clerk  of  the  Supreme  Court  within  thirty 
days  after  the  bond  is  filed.'  The  statement  we  have  made 
expresses  the  general  rule  but  to  this  general  rule  there  are 
marked  exceptions.  One  exception  is  that  where  the  adminis- 
trator or  executor  appeals  no  bond  is  necessary,-  but  he  must 
file  the  transcript  within  the  time  limited  in  the  office  of  the 
clerk  of  the  Supreme  Court.3  Another  exception  is  that,  for 
cause  shown,  the  time  for  perfecting  the  appeal  may  be  ex- 
tended for  a  period  not  exceeding  one  year. 

§  2(33.  Extension  of  Time — It  is  not  to  be  assumed  that  the  time 
for  perfecting  the  appeal  will  be  extended  as  of  course  ;  on  the 
contrary,  the  statute  allows  an  extension  only  for  cause  shown, 
and  the  rule  that  the  settlement  of  decedents'  estates  shall  not 
be  delayed  or  embarrassed  by  appeals,  as  well  as  the  general 
rule  that  time  is  of  the  essence,  would  be  violated  by  extending 
the  time  for  taking  an  appeal  unless  a  clear  and  strong  case  is 


1  There  has  been  some  confusion  in 
the  decided  cases  as  to  the  time  within 
which  the  transcript  is  to  be  filed,  but 
the  statute  plainly  requires  that  it  shall 
be  filed  within  thirty  days  after  the 
bond  is  filed,  thus  allowing  forty  days 
in  which  to  perfect  the  appeal.  Elliott's 
Supp.,  §  417;  Webb  v.  Simpson,  105 
Ind.  327;  Rinehart  v.  Vail,  103  Ind. 
159;  Miller  v.  Carmichael,  9S  Ind.  236; 
Browning  v.  McCracken,  97  Ind.  279; 
Yearley  v.  Sharpe,  96  Ind.  469. 

2  It  is  the  duty  of  an  administrator  to 
appeal  if  there  is  reasonable  ground  to 
believe  that  the  trial  court  erred  to  the 
prejudice  of  the  estate.  Ruch  v.  Biery, 
no  Ind.  444. 

3  The  decision  in  Simons  v.  Simons 
(Ind.),  2S  N.E.  Rc]>.  702.  fully  sustains 
the  statement  of  the  text  that  thirty  days 

tiling  the  bond  is  allowed  for  per- 
fecting the  appeal,  and  that  decision  also 


asserts  that  an  administrator  who  ap- 
peals without  filing  a  bond  has  the  same 
length  of  time — namely,  forty  days — 
in  which  to  perfect  an  appeal  that  is 
allowed  a  party  who  is  required  to  give 
bond.  In  the  case  referred  to  it  was 
said :  "  The  law  gives  the  same  time  to 
both  parties  to  appeal.  An  executor 
or  administrator  is  not  required  to  file 
a  bond,  yet  he  may  take  the  full  forty 
days  for  perfecting  an  appeal,  and  the 
opposite  party  is  entitled  to  the  same 
time.  The  law  i>  intended  to  be  equal 
in  its  operation  and  to  apply  alike  to 
the  parties  on  both  sides  of  the  contro- 
versy. If  the  administrator,  or  exe< 
utor,  who  files  a  bond  may  perfect  his 
appeal  at  any  time  within  forty  days 
(about  which  there  seems  to  be  no 
doubt),  there  is  no  good  reason  why 
the  opposite  party  may  not  have  the 
same  right." 


DECEDENTS'   ESTATES.  227 

shown.  A  party  who  asks  an  extension  must  show  diligence 
and  care,  for  if  he  is  himself  guilty  of  culpable  fault  the  court 
will  not  interfere  with  the  operation  of  the  statutory  rule. 

§  264.  Steps  essential  to  secure  extension  of  Time — A  party  who 
seeks  an  extension  of  time  must  do  all  that  it  is  incumbent  upon 
him  to  do,  so  far  as  reasonable  care  and  reasonable  diligence 
will  enable  him  to  do  it,  for  he  can  not  justly  ask  relief  if  he 
has  himself  been  inactive  and  negligent.  It  is  necessary  for  him 
to  petition  for  an  extension  of  time  when  an  extension  is  de- 
sired, and  to  show,  in  his  petition,  sufficient  cause  for  the  relief 
he  prays,  and  this  cause  he  can  not  show  without  showing  what 
he  has  done  and  why  he  has  been  prevented  from  fully  per- 
forming all  that  the  statute  makes  essential  to  an  appeal.  The 
petition  should  be  verified.  In  strictness,  the  petition  should 
show  merit  in  the  appeal,  not  by  vague  general  averments  but 
by  proper  allegations  of  facts.  Notice  of  the  petition  must  be 
given.1  It  is  true  that  there  has  been  some  conflict  upon  the 
question  of  the  necessity  for  notice,  but  the  only  defensible  rule 
is  that  notice  shall  be  given.  A  party  can  not  be  expected  to 
keep  informed  of  collateral  and  independent  motions  or 
petitions,  but  the  party  who  seeks  relief  through  such  petitions 
or  motions  is  in  duty  bound  to  impart  information  by  a  notice 
prepared  and  served  as  the  rules  of  the  court  or  the  statute  di- 
rect. A  party  against  whom  an  appeal  is  asked  after  the  ex- 
piration of  the  time  fixed  by  statute  should  have  an  opportunity 
of  being  heard  in  opposition  to  such  a  collateral  motion  or  pe- 
tition.2 

§  265.   Notice  of  the  Application  for  an  Extension  of  Time — The 

notice  should  be  sufficiently  specific  to  inform  the  opposite  party 
of  the  nature  of  the  motion  or  petition  and  the  time  for  the  hear- 

1  Rule  XI.  is  in  harmony  with  the  general  doctrine" 

2  Duncan  v.  Gainey,  ioS  Ind.  579;  that  prevails  in  appellate  procedure,  for 
Browning  v.  McCracken,  97  Ind.  279.  that  doctrine  is  that  notice  must  be  given 
In  the  case  last  named  it  was  said:  "If  of  all  independent  or  purely  collateral 
such  an  order  is  desired,  a  formal  and  motions  or  petitions.  The  rules  of  the 
proper  application  must  be  made,  and  court  clearly  recognize  the  general  doc- 
notice  given  to  the  appellee."    This  rule  trine.     Rule  XIII. 


APPELLATE  PROCEDURE. 

ing  should  be  stated.  The  notice  should  be  served  ten  days 
before  the  time  fixed  for  the  hearing.1  The  petition  should  be 
filed  at  the  time  of  giving  the  notice.  For  this  conclusion  there 
are  two  reasons:  First,  it  is  incumbent  upon  the  petitioner  to 
proceed  promptly  and  do  what  he  reasonably  can  to  avoid 
further  delay  ;  second,  the  rule  of  the  court  requires  that  the 
papers  on  which  the  notice  is  based  shall  be  filed  with  the  clerk.2 

§  266  Briefs  upon  the  Application — If  questions  of  law  arise 
upon  the  petition  briefs  should  be  filed.  There  is  no  necessity 
for  counsel  to  appear  in  person  to  the  petition,  for  oral  argu- 
ments are  not  heard  in  such  matters.'5  The  practice  is  for 
counsel  to  file  with  the  clerk  such  papers,  affidavits  and  briefs 
as  are  deemed  necessary  to  present  the  matter,  and  they  are 
laid  before  the  court  by  the  clerk. 

§  267.  Bond  must  be  tiled  within  time  Limited — Where  a  bond  is 
necessary  to  an  appeal  it  must,  upon  the  principle  considered 
in  discussing  appeals  in  term,'  be  filed  within  the  time  desig- 
nated by  the  statute.  As  a  bond  is  required  from  all  persons 
other  than  administrators  and  executors,  in  appeals  from  de- 
cisions in  cases  growing  out  of  matters  connected  with  a  de- 
cedent's estate,  and  as  the  statute  fixes  the  time  within  which 
it  must  be  filed  there  can  be  no  appeal  without  the  bond.  The 
court  may  upon  due  application  and  for  cause  allow  a  bond  to 
be  filed  after  the  expiration  of  the  time  limited,  but  ordinarily 
the  bond  must  be  filed  within  the  time  prescribed.5 

1  Rule    X.    Newman    v.  Riser  (Ind.),  Moore,  3   Dall.  371;   Blair  v.  Miller,    r 

26  \.  E.  Rep.  1006.  Dall.   21;    Edmonson  v.  Bloomshl 

3  Rule  XIII.  Wall.  306.     After  the  expiration  of  the 

3  Rule  XIII.  A  motion  or  petition  time  limited  a  bond  can  not  be  filed  as 
o!  the  kind  mentioned  in  the  text  be-  a  matter  of  course,  for  this  is  forbidden 
longs   to  the  class  called  "special  mo-  by  the  rule  that  all  the  steps  essential 

"  and  tall  under  Rule  VII.  to  an  appeal  must  be  taken  within  the 

4  See.  ante,  §  263;  Simons  v.  Simons  time  fwed  by  the  law.  Ante,  §  i-S.  A 
(Ind.).  28  X.  E.  Rep.  702.  party  who  neglects  to  do  what  the  law 

''  Rinehart  v.  Vail,  103  Ind.  159.    Dil-  requires  may  have  relief  upon  a  proper 

igence  is  required,  and  one  who  is  neg-  application,  but  he  can  not  claim  it  as  a 

ligentwill  not  be  favored.     Grigsby  v.  matter  of  strict  right.     If  he  is  in  fault 

Purcell,    99    U.    S.    505;     Hamilton    v.  relief  will  seldom  be  granted  him. 


DECEDENTS'   ESTATES.  229 

§268.   Intermediate  Decisions  and  Interlocutory  Orders  —  The 

language  of  the  special  statute  is  very  broad,  and  if  it  were 
considered  without  reference  to  the  general  principles  of  the 
law  it  would  authorize  an  appeal  from  any  decision,  intermedi- 
ate or  final,  but  it  is  not  to  be  so  considered.  It  is  limited  and 
restricted  by  other  statutory  provisions  and  by  settled  princi- 
ples,1 and  rightly  so,  since  it  is  not  to  be  assumed  that  the  legisla- 
ture meant  to  permit  cases  to  be  carved  into  fragments  and 
appealed  piecemeal.  To  permit  this  to  be  done  would  be  to 
keep  open  the  estates  of  decedents  for  an  almost  unlimited 
period  and  thus  produce  the  evil  which  it  was  the  principal  ob- 
ject of  the  legislature  to  destroy.  But  there  may  be  an  ap- 
pealable final  judgment  as  to  some  particular  and  independent 
issue  although  the  judgment  may  not  settle  anything  more  than 
the  particular  controversy.  Thus,  there  may  be  a  final  judg- 
ment upon  a  particular  claim,2  or  in  a  proceeding  to  sell  land 
to  pay  debts,  or  the  like.  The  question  whether  there  is  or  is 
not  a  final  judgment  from  which  an  appeal  will  lie  is  to  be 
solved  by  ascertaining  whether  the  decision  appealed  from  was 
rendered  in  an  independent  controversy  and  was  fully  deter- 
minative of  the  rights  of  all  the  parties  interested  in  the  par- 
ticular controversy.  As  we  have  elsewhere  shown,  there  may 
be  a  final  judgment  authorizing  an  appeal  although  it  does  not 
cover  an  entire  subject  or  affect  the  interests  of  all  persons  in- 
terested in  the  general  subject.3  This  general  doctrine  applies 
to  a  case  in  which  a  decedent's  estate  is  interested  in  a  contin- 
gent and  general  way,  but  wherein  the  particular  controversy  is 
an  independent  one  and  is  fully  and  finally  adjudicated  as  to 
the  rights  of  all  the  parties  interested  in  that  controversy. 

1  Thiebaud    v.  Dufour,  57  Ind.   59S;  cases  of  Woolley  v.  The  State,  8  Ind. 

Goodwin    v.   Goodwin,    4S    Ind.    584;  377;    Reese  v.  Beck,  9  Ind.  23S;    Reed 

Wood    v.    Wood,    51    Ind.    141.      The  v.  Reed,  44   Ind.    429,  thus   indicating 

court  has  uniformly  applied  to  appeals  verv  clearly  that  the  general  rule  as  to 

under  the  statute  the  general  rule  that  appeals  from  interlocutory   judgments 

an    appeal    will    lie   only    from  a  final  was  not  changed  by  the  special  statute, 

judgment.  Pfeifter  v.  Crane,  S9  Ind.  4S5;  2  This  general  doctrine  is  asserted  in 

Angevine  v.  Ward,  66  Ind.  460;  Pvles  the   case   of    Beard    v.    First    Presby- 

v.  Adams,  97  Ind.  605.       In   Thiebaud  terian  Church,  15  Ind.  490. 

v.  Dufour,   supra,   the   court  cited  the  3  And.  §§95,98. 


CHAPTER  XV. 

APPEALS  IN  CRIMINAL  CASES. 


§  269.    Statutory  remedy  exclusive.  §  2S4. 

270.  Appeals  can  not  be  taken  under 

the   statute   providing  for  ap-  285. 

peals  in  civil  actions.  2S6. 

271.  Classes  of  appeals.  287. 

272.  Appeal  by  the  State. 

273.  When    an    appeal   will    not    lie 

from  a  denial  of  a  motion  in         2SS. 
arrest. 

274.  The     State    can    present     only         2S9. 

questions  of  law.  290. 

275.  Preparation  of  the  record.  291. 

276.  Bill  of  exceptions — When  nee-         292. 

essarv. 

z~~.    Exceptions   must    be   reserved —         293. 
Motion  for  new  trial   not  re- 
quired. 294. 

27S.    The  State  has  no  general  right         295. 
of  appeal. 

279.  How  questions  of  law  may  arise.        296. 

280.  What  the  record  must  show. 

281.  Defective  record.  297. 
2S2.    The  initial  step — Notice. 

283.    Notice  is    merely    one  step  to-         298. 
wards  perfecting  the  appeal. 


Time  within  which  the  State 
must  perfect  the  appeal. 

Time — -Waiver. 

Appeal  by  defendant. 

Defendants  given  a  general  right 
of  appeal — What  must  be  done 
to  perfect  an  appeal. 

Appeal  by  one  of  several  de- 
fendants. 

Waiver  of  the  right  of  appeal. 

Waiver  of  errors. 

Presumptions. 

Record  must  show  prejudicial 
error. 

Objections  must  be  made  in  tin- 
trial  court. 

Tile  record.. 

Bill  of  exceptions — When  nec- 
essary. 

The  bill  of  exceptions — Matters 
of  practice. 

Appeal  does  not  vacate  the 
judgment. 

Effect  of  an  appeal  by  the  State. 


§  269.  Statutory  Remedy  Exclusive — The  general  rule  is  this : 
Where  the  statute  furnishes  a  specific  and  adequate  remedy  for 
the  review  of  a  judgment  in  a  criminal  prosecution  that  remedy 
must  be  pursued.1  At  common  law  no  appeal  was  provided 
for  in  criminal  prosecutions  in  cases  of  felony,  nor,  indeed,  was 


'  brazier  V.  State.  [06  End.  562;    State 
v.  Lawrence,  81  N.C.522;   Well-'*. 
j  Greenl.  (Me.)  322;    People  v.  Carnal, 
6    V  Y.  463     1'.  Dpi     -  .  Clark.  7    N     Y 
385.     In  State  r  .  Daily.  6  Ind.  <;.  it  was 


held  that  the  State  had  a  right  to  a 
writ  of  error.  See,  however,  People  v. 
Corning,  2  Corns.  (N.  Y.)  9;  State  v. 
Bartlett,  9  Ind.  569. 


(230) 


APPEALS   IN  CRIMINAL    CASES.  231 

the  person  convicted  of  a  felony  entitled  to  a  new  trial.1  So, 
while  it  is  true  that  we  may  look  to  the  common  law  for  prin- 
ciples of  trial  procedure  in  aid  of  the  statute,2  or  to  prevent  the 
utter  failure  of  justice,3  we  can  look  only  to  the  statute  for  the 
remedy  for  the  review  of  a  judgment  in  criminal  cases.  An 
accused  must  accept  the  benefit  of  the  statute  with  its  burdens,4 
and  the  State  can  only  take  advantage  of  the  statutory  remedy 
as  it  is  given.5 

§  270.  Appeals  can  not  be  taken  under  the  Statute  providing  for 
appeals  in  Civil  Actions — Appeals  in  criminal  cases  must  be  taken 
and  prosecuted  under  the  provisions  of  the  statute  providing  for 
appeals  by  the  State  or  the  accused,  and  not  under  the  provis- 
ions regulating  appeals  in  civil  actions.6  But  this  rule  does  not 
exclude  the  application  of  settled  principles  to  the  case  on  ap- 
peal, nor  does  it  preclude  a  reference  to  the  general  principles 
of  civil  procedure,  although  it  does  require  that  as  to  the  modes 
of  procedure  in  preparing  and  perfecting  an  appeal  the  statutory 
provisions  must  be  complied  with  in  every  material  particular. 
As  to  the  time  of  appealing,  the  preparation  of  the  transcript, 
the  issuing  and  service  of  notice  and  the  like,  regard  must  be 
had  to  the  criminal  code,  in  cases  where  there  are  specific  pro- 
visions upon  that  subject,  but  as  to  the  matters  of  general  prac- 
tice as,  for  instance,  the  doctrine  of  waiver,  reference  may  prop- 
erly be  had  to  general  principles.7 

1  Regina  v.  Murphy,  Law  R.  2  P.  C.  Mills  -v.  State,  52  Ind.  1S7;  Ex  parte 
535;  Regina  v.  Bertrand,  10  Cox  C.  C.     Bradley,  48  Ind.  54S. 

618;   Sanders  v.  State,  85  Ind.  318,  324;  5  Territory  v.   Laun,  S  Mont.  322,  20 

Harris    Crim.    Law,   406;    2    Bishop's  Pac.  Rep.  652.    See  Peterson  v.  Ottawa 

Crim.  Prac,  §  126S.  41  Kan.  293,  21  Pac.  Rep.  263;   State  v. 

2  Marcus  v.  State,  26  Ind.  101;  Goings,  100  N.  C.  504,  6  S.  E.  Rep.  SS. 
Walker  v.  State,  23  Ind.  61;  Bell  v.  6  State  v.  Wallace,  41  Ind.  445.  "And 
State,  42  Ind.  335;  State  v.  Berdetta,  the  civil  code  does  not  govern  appeals 
73  Ind.  185,  3S  Am.  Rep.  117;  Wall  v.  in  criminal  cases."  Sturm  v.  State,  74 
State,  23  Ind.  150;  Burk  v.  State,  27  Ind.  27S.  2S2;  Farrel  v.  State,  7  Ind. 
Ind.  442.  345;   Whittem  v.  State,  36  Ind.  196,202 

3  Sanders  v.  State,  85  Ind.  31S.  7  This  general  doctrine  is  that,  as  to 
*  Butler    v.    State,  97    Ind.  37S,  3S3;     all  things  done  by  the  consent,  express 

Veatch  v.  State,  60  Ind.  291.  See  or  implied,  of  the  parties,  there  is  a 
Reynolds  v.  United  States,  9S  U.  S.  waiver  of  objection.  The  doctrine  may, 
145;    Morris    v.    State.    1     Blackf.    37;     indeed,  be  more  strongly  stated,  but  this 


232  APPELLATE  PROCEDURE. 

§  271.  Classes  of  Appeals — The  subject  of  appeals  in  criminal 
cases  naturally  divides  itself  into  two  parts.  Appeals  by  the 
State  and  appeals  by  the  accused.  The  right  of  appeal  is  es- 
sentially different  in  the  two  classes,  and  the  questions  for  de- 
cision are  not  the  same.  The  effect  of  the  judgment  in  the  one 
class  of  cases  is  very  different  from  what  it  is  in  the  other,  and 
there  are  material  differences  in  the  mode  of  procedure. 

§  272.  Appeal  by  the  State — The  State  may  appeal  in  the  fol- 
lowing cases  :  i .  Upon  a  judgment  for  the  defendant  on  quash- 
ing or  setting  aside  an  indictment  or  information.  2.  Upon  an 
order  of  the  court  arresting  the  judgment.  3.  Upon  a  question 
reserved  by  the  State.1  The  judgment  contemplated  by  the 
statute  is  a  final  one,2  for  the  general  rule,  heretofore  discussed, 
that  appeals  can  only  be  taken  from  final  judgments  applies  to 
appeals  in  criminal  cases.3  Where  there  is  a  conviction  of  the 
crime  directly  charged  there  can  be  no  appeal  by  the  State/ 
but  whether  there  can  be  an  appeal  where  the  conviction  is  of 
an  offence  of  a  less  grade  than  that  directly  charged  is  left  in 
doubt.  In  the  only  case  which  touches  directly  upon  the  point 
no  question  was  made  as  to  the  right  of  the  State  to  appeal,  but 
the  appeal  of  the  State  was  sustained. s  As  the  question  was 
not  presented,  or  decided,  that  case  can  not  be  deemed  decisive, 

statement  is   sufficient  for  our  present  State,  10  Neb.  102;  Cochrane  v.  State, 

purpose.      Randon  v.  Toby,    11    How.  30  Ohio  St.  61;  People  v.  Merrill,   14 

{' .    S.  493;    Mudget   v.   Kent,    iS    Me.  Kern,    N.    Y.     74.       Parties    can     not 

349;   Nixon  v.  Hammond,  12  Cush.  2S5;  confer  jurisdiction  by  agreement  where 

Mountjoy  v.  State,  78  Ind.  172;  Norton  there  is  no  final  judgment.    The  finality 

ite,  io6Ind.i63;  Mullinix  v.  State  of  a  judgment  is  essential  to  jurisdiction, 

10  Ind.  5.  and  the  familiar  rule  that  jurisdiction 

1  R.  S.1S81,  §  1SS2;  State  v.  Marsteller,  can  not  be  given  by  consent  forbids  the 

s;  N.  C.  727;     State  v.  Padgett,  S2   N.  court  from   assuming  authority  over  a 

C.  ^44.  case  where  questions  remain  to  be  tried 

'  See     "  What     may    be     Appealed  and    determined.     Wingo  v.  State,   99 

From,"  Chapter  V.  Ind.  343;   State  v.  Spencer,  92  Ind.  115; 

3  State  v.  Ely,  11  Ind.  313;  People  v.  State  v.  Wiseman,  6S  N.  C.  203;   State 

Clark.  7  N.  Y.  3S5;    People  v.  Nestle,  v.    Jefferson,    66    N.    C.    309;     United 

[9  \.  Y.   5S3.     See,  also,  Hornberger  States  v.  Norton,  91  U.  S.  566. 

v.    State,    5    Ind.   300;    Dougherty    v.  4  State    v.    Hamilton,    62    Ind.   409; 

.    5    Ind.  453;    Farrel  v.  State,  7  State   v.    Ely,   11     Ind.   313;     State   v. 

Ind.  345;     Miller   v.   State.  S  Ind.  325;  Credle,  63  N.  C.  506. 

Pigg    v.    State,   9  Ind.  363;     Green    v.  5  State  :•.  Johnson,  102  Ind.  247. 


APPEALS  IN  CRIMINAL    CASES.  233 

although  the  fact  that  it  was  assumed  that  the  appeal  would  lie 
indicates  the  opinion  of  the  court.  The  question  is  difficult,  for, 
on  the  one  hand,  it  may  be  urged  that  if  the  accused  is  ac- 
quitted of  the  higher  grade  he  ought  not  to  be  compelled  to 
have  the  costs  of  an  appeal  taxed  against  him  ;]  on  the  other 
hand,  it  may  be  forcibly  urged  that  the  object  of  the  statute  is 
to  secure  an  authoritative  decision  upon  questions  of  law,  and 
that  the  acquittal  of  the  higher  grade  is  such  a  judgment  of  ac- 
quittal as  entitles  the  State  to  appeal.  We  are  inclined  to  the 
opinion  that  the  State  may  appeal  since  this  is  the  effect  of  the 
decision  referred  to,  and  for  the  further  reason  that  this  conclu- 
sion harmonizes  with  the  general  doctrine  that  a  party  may  ap- 
peal from  a  judgment  in  his  favor  if  the  judgment  is  less  favora- 
ble than  that  to  which  the  law  entitles  him.  The  accused  is  not 
harmed  beyond  the  question  of  costs,  since  a  judgment  in  favor 
of  the  State  would  not  authorize  a  second  trial  in  a  case  where 
there  is  a  conviction  of  an  offence  included  in  the  indictment, 
for  in  such  a  case  there  can  be  no  judgment  of  reversal.2  The 
doctrine  we  have  stated  can  have  no  application  to  a  case  where 
part  only  of  the  counts  of  an  indictment  are  quashed,  for  in  such 
a  case  there  is  no  final  acquittal  of  any  part  of  an  offense,  nor, 
indeed,  is  there  any  final  judgment.3  While  the  general  rule  is 
that  neither  the  State  nor  the  accused  can  appeal  until  there  is 
a  final  judgment,  the  rule  does  not  preclude  an  accused  from 
prosecuting  a  second  appeal  where  the  first  simply  secures  a 
modification  of  a  mandate  of  the  trial  court  designating  the 
time  for  the  execution  of  the  accused,  but  it  would  be  other- 
wise if  the  first  appeal  brought  before  the  appellate  tribunal  the 
whole  case  for  review.4     It  is  evident  that  the  case  instanced 

1  State  v.  Tumey,  Si  Ind.  559.  Ind.  581,  583,  it  was  said:    "  The  result  of 

2  We  assume  in  what  has  been  said  all  the  decisions  is,  that  it  is  only  from 
that  the  question  discussed  can  only  final  judgments  that  appeals  can  be 
arise  where  there  has  been  a  trial  and  taken,  unless  otherwise  specially  au- 
conviction  of  one  grade  of  the  offence  thorized  by  statute,  and  it  is  only  after 
charged,  and  this  assumption  is  obvi-  judgment  for  the  defendant  eit! 
ously  valid  since  in  order  that  the  con-  final  acquittal  or  in  setting  aside  the 
troversy  can  arise  there  must  be  a  con-  whole  information  or  indictment,  that 
viction  of  a  lower  grade  and  an  ac-  an  appeal  may  be  taken  by  the  State." 
quittal  of  the  higher.  4  Koerner  v.  State,  96  Ind.  J43.     A 

3  In  State  v.  Evansville,  etc.,  Co.,  107  second   appeal    was    taken   in   the  case 


234  APPELLATE   PROCEDURE. 

does  not  fall  within  the  reason  of  the  rule,  inasmuch  as  the 
designation  of  the  time  for  the  execution  in  violation  of  a 
positive  statute  is  an  error  that  must  be  first  corrected  in  order 
to  give  the  accused  the  time  the  law  awards  for  taking  and  per- 
fecting an  appeal. 

£  273.  When  an  Appeal  will  not  lie  from  a  denial  of  a  Motion  in 
Arrest — It  has  been  held  that  the  State  can  not  appeal  from  a 
ruling  denying  a  motion  in  arrest  in  a  case  where  the  cause  as- 
signed in  the  motion  calls  in  question  the  correctness  of  the  ver- 
dict on  the  evidence,1  and  this  decision  is,  as  we  believe,  cor- 
rect, but  it  is  probable  that  some  of  the  expressions  in  the 
opinion  require  limitation.  We  suppose  that  the  conclusion 
reached  was  right  for  the  reason  that  an-  appeal  by  the  State 
can  not  present  for  review  any  question  of  fact,  but  we  sup- 
pose, also,  that  it  is  quite  clear  that  a  motion  in  arrest  may  pre- 
sent a  pure  question  of  law.  We  can  not  perceive  how  the 
State  could  in  any  case  present  a  question  upon  the  evidence 
by  a  motion  in  arrest ;  nor,  indeed,  are  we  able  to  perceive 
how  the  defendant  could  present  a  question  upon  the  evidence 
in  that  mode.  If,  however,  a  motion  in  arrest  presents,  as  it 
must  do,  a  question  of  law  the  State  may,  by  the  appropriate 
procedure,  reserve  the  ruling  for  review. 

§  274.  The  State  can  present  only  Questions  of  Law — A  funda- 
mental rule  respecting  procedure  and  jurisdiction  is  that  the 
State  can  only  bring  questions  of  law  before  the  appellate  tri- 
bunal for  review.  The  right  of  appeal  is  given  by  the  statute 
and  no  authority  is  conferred' to  decide  questions  of  fact;2  it 
may,  however,  be  necessary  tc  state  facts  so  that  it  may  appear 
that  a  question  of  law  is  actually  presented.3     If  the  questions 

cited  alter  the  judgment  of  the  trial  Campbell,  67  Ind.  302;  State  v.  Over- 
court   was   corrected,  and.  on   that  ap-  holser,  69  Ind.  144. 

peal,  the  questions   in   the   record   were  3  State  t'.   Kern,   127    Ind.  465;    State 

examined    and    decided.       Koerner    v.  v.  Frazer,  2S  Ind.  196;   State  v.  Ely,  14 

State,  98  Ind.  7.  Ind.  291 ;  States .Bartlett, 9  Ind.  569.  570. 

1  State  v.  Rousch,  60  Ind.  304.     See  Enough  must  be  stated  in  the  record  to 

State  v.  Murphy,  8  Blackf,  49b.  show  a  real  question  and  an  error  of 

-  Mate  v.  Hal!,  58  Ind.  512;     State  v.  law.     "It   is   not  enough  to  except  to 

Van  Valkenburg,  60  Ind.  302;    State  v.  the   opinion    of  the    court."     State   v. 

Bartlett.  supra. 


APPEALS  IN  CRIMINAL   CASES.  235 

sought  to  be  presented  can  not  be  decided  without  also  decid- 
ing upon  controverted  matters  of  fact  the  appellate  tribunal 
will  not  give  any  judgment  upon  the  questions  presented  by  the 
State.  In  a  case  where  there  was  an  utter  failure  of  evidence 
to  sustain  a  criminal  charge  an  appeal  by  the  State,  upon  the 
ground  that  the  trial  court  erred  in  directing  a  verdict  for 
the  defendant,  was  entertained,  although  it  was  held  that  the 
appeal  was  fruitless.1  The  question  in  the  case  cited  arose 
upon  an  instruction  asserting  a  specific  theory  of  law  and 
hence  the  question  whether  the  trial  court  did  or  did  not  err  in 
instructing  the  jury  presented  a  question  of  law  and  not  of  fact, 
so  that  the  court  can  not  be  said  to  have  departed  from  the  gen- 
eral rule  in  entertaining  the  appeal  in  that  case.  We  think  the 
correct  general  rule  is  this  :  Where  the  trial  court  in  instructing 
the  jury  to  return  a  verdict  for  the  defendant  in  a  criminal  case 
asserts  a  definite  theory  of  law  the  State  may  appeal,  but  where 
the  instruction  determines,  as  a  pure  matter  of  fact,  that  there 
is  no  evidence,  an  appeal  will  not  lie.  To  hold  that  an  appeal 
will  lie  where  the  court  directs  a  verdict  simply  because  there 
is  no  evidence,  would  be  contrary  to  the  settled  doctrine  that 
only  questions  of  law  can  be  reserved  by  the  State.2  The  ob- 
ject of  the  statute  providing  for  appeals  by  the  State  is  not  to 
secure  a  review  of  questions  of  fact,  but  to  secure  an  authori- 
tative exposition  of  the  law.3 

§  275.  Preparation  of  the  Record — The  record  must  be  pre- 
pared in  accordance  with  the  fundamental  principle  that  only 
questions  of  law  can  be  presented  to  the  appellate  tribunal  in 
cases  where  the  State  appeals.  There  can  be  little  difficulty  in 
reserving  questions  of  law  in  cases  where  the  rulings  challenged 

1  State  v.  Banks,  4S  Ind.  197.  facts  of  the  case  and  then  to  draw  con- 

2  In  State  v.  Overholser,  69  Ind.  144,  elusions  of  law  from  those  facts,  which 
the  court  said:  "But  to  enable  us  would  be  a  proceeding,  in  our  opinion, 
to  review  the  action  of  the  court  in  the  not  contemplated  by  the  statute  author- 
matter  complained  of,  it  would  be  nee-  izing  appeals  by  the  State  in  criminal 
essarv  for  us  to  go  through  the  evidence  cases  upon  questions  reserved  at  the 
and    to   determine    what    it    may    have  trial." 

tended,  or  may  not  have  tended,  to  3  The  general  doctrine  was  well  and 
prove.  That  would  be  requiring  us  clearly  stated  in  State  v.  Swails,  S  Ind. 
first    to  express    an    opinion   upon   the     ^24. 


APPELLATE  PROCEDURE. 

bv  the  State  arise  on  motions  or  demurrers  addressed  to  indict- 
ments or  informations,  for  in  such  cases  a  due  and  timely  ex- 
ception will  save  the  question,  and  no  bill  of  exceptions  is  re- 
quired.' Where,  however,  the  State  seeks  to  reserve  a  question 
ol  law  upon  a  ruling  other  than  that  made  upon  the  indictment, 
information  or  other  pleading,  the  record  must  be  made  up 
with  a  view  to  presenting  that  question,  and  so  made  up  that 
the  appellate  tribunal  can  understand  the  question  and  obtain 
an  adequate  conception  of  the  ruling  out  of  which  it  arises.2 

i  276.  Bill  of  Exceptions— When  necessary— A  bill  of  excep- 
tions is  essential  to  present  a  question  reserved  by  the  State 
on  the  trial,  for  no  other  construction  can  be  placed  upon  the 
language  of  the  statute  providing  for  reserving  such  questions.3 
The  statute  contemplates  that  only  specific  questions  of  law 
shall  be  reserved  and  to  reserve  such  questions  it  is  necessary 
that  the  particular  .rulings  should  be  appropriately  challenged 
in  the  trial  court,  the  proper  exceptions  reserved  and  the  ap- 
propriate record  made.  As  only  specific  questions  can  be 
raised  the  exceptions  must  be  to  specific  rulings,  and  the  rul- 
ings and  exceptions  must  be  so  fully  exhibited  by  the  record 
that  the  appellate  tribunal  can  understand  the  particular  ques- 
tion reserved  and  ascertain  that  the  mode  of  reserving  it  is 
such  as  the  law  authorizes. 

§  277.  Exceptions  must  be  reserved — Motion  for  New  Trial  not  re- 
quired— An  exception  to  the  specific  ruling  is  essential  and  a 
motion  for  a  new  trial  can  not,  in  our  opinion,  operate  as  an 

1  State  v.  Day,  ;:  Ind.  483;  State  v.  It  is  not  enough  in  either  case  to  except 
Vanderbilt,  116  Ind.  11.  to   the   opinion    of  the   court,   but   the 

2  Referring  to  the  statute  giving  the     record  must  be  made  up  with  so  much 

righl    of  appeal  upon  reserved  of  the    evidence    as    is    essential    to    a 

ciue~tion-.it  was  said  in  The  State  v.  proper  understanding  of  the  case  in  this 

Bartlett,  g  Ind.  569,  that,  "The  reserved  court.    This  is  indispensable  in  reserved 

here  spoken  of  in   a  criminal  pro-  questions    whether    civil    or  criminal." 

ceedi  not  differ  materially  as  to  We  suppose,  however,  that  appropriate 

from  that  provided  for  in  the  civil  general  statements  as   to  material  facts 

practice.       In     both    cases,    the     record  would  he  sufficient. 

musl  Up   in    the    lower    court  :t  R.    S..   §  1SS3;    Territory    v.  Jinks, 

with  a  view  to  its  being  brought   here.  8  Mont.  135,  19  Pac.  Rep.  3S6. 


APPEALS   IN    CRIMINAL    CASES.  237 

exception.  We  think  that  a  motion  for  a  new  trial  on  the  part 
of  the  State  is  not  contemplated  by  the  statute  and  that  it  can 
subserve  no  useful  purpose.1  It  is  settled  that  the  appellate 
tribunal  can  not  require  the  accused  to  be  again  tried — that 
would  violate  a  constitutional  provision — so  that  the  filing  of  a 
motion  for  a  new  trial  would  be  a  mere  idle  ceremony.2  In  the 
cases  which  have  been  appealed  by  the  State  the  questions 
were,  so  far  as  our  investigation  has  enabled  us  to  discover, 
examined  without  any  motion  for  a  new  trial  in  the  record. 
The  conclusion  we  assert  is  supported  by  analogous  decisions 
under  the  provisions  of  the  civil  code,  for  it  is  held  that  a 
question  upon  conclusions  of  law  stated  in  a  special  finding 
can  not  be  presented  by  a  motion  for  a  new  trial,  but  must  be 
presented  by  a  direct  exception  to  the  conclusions.3  There 
is  stronger  reason  for  applying  the  doctrine  referred  to  in  cases 
of  the  class  under  immediate  mention  than  there  is  for  applying 
it  in  civil  cases,  for,  in  that  class  of  cases,  a  new  trial  ma)'  be 
awarded  but  the  State  can  not  have  a  second  trial  where  there 
has  been  an  acquittal.  As  the  authorities  already  cited  show, 
reserved  questions  are  questions  of  law  and  not  of  fact,4  and 
such  questions  are  properly  made  and  saved  by  direct  and  spe- 
cific exceptions.  The  great  principle  which  runs  throughout 
all  the  cases  is  that  an  exception  presents  a  question  of  law  and 
not  of  fact,  and  that  ordinarily  only  questions  of  law  are  raised 

1  In   the   case   of  State  v.  Ensey,  42  a  specific   ruling   and  to  that  ruling  a 

Ind.  4S0,  the  court  declined  to  decide  direct  exception. 

whether  an  exception  to  a  ruling  on  a  2  State  v.  Newkirk,  So  Ind.  131;  State 
notion  for  new  trial  is  such  an  excep-  v.  Tuniev.  Si  Ind.  559. 
tion"as  constitutes  a  reservation  of  a  3  Bundy  v.  McClarnon,  118  Ind.  165; 
point  01  law.''  But  the  reasoning  of  the  Clayton  v.  Blough,  93  Ind. 85;  Schmitz 
court  upon  another  point  leads,  it  seems  v.  Laufertv,  29  Ind.  400;  Smith  v.  Da- 
te us,  to  the  conclusion  stated  in  the  vidson,  45  Ind.  396;  Grimes  v.  Duzan, 
text.    "  It  is  only  the  question  on  which  32  Ind.  361. 

the  court  has  given   opinion,      it   was  4  To  the  cases  heretofore  cited  to  tne 

said   in   the  case  cited,  "and  to  which  proposition  that  questions  of  fact  will 

opinion    the   prosecutor   has  excepted,  not    be    decided    on    an   appeal   by  the 

which  can  be  reviewed  by  this  court,  State  may  be  added.  State  v.  Yount,  4 

and  the  ruling  on  that  question  must  Ind.  653;  State  v.  Davis,  4  Blackf.  345; 

be   assigned    as   error   in    this   court."  State  v.  Bouche,  5  Blackf.  154;   State  v. 

The  legitimate  sequence  from  the  prop-  Johnson,  8  Blackf.  533. 
ositions  asserted  is  that  there  must  be 


APPELLATE  PROCEDURE 

by  an  exception.  It  is  also  true  that  the  rule  that  where  an 
exception  is  made  the  appropriate  method  of  presenting  a  ques- 
tion the  exception  itself  is  sufficient,  when  properly  expressed 
and  duly  embodied  in  the  record,1  to  present  a  question  of  law 
in  cases  where  questions  may  be  reserved.  There  is,  therefore, 
no  propriety  in  moving  for  a  new  trial.1'  The  term  "  reserved 
questions  "  implies  that  questions  may  be  made  and  saved  by 
an  exception  taken  as  the  law  requires  and  duly  carried  into 
the  record. 

§  278.  The  State  has  no  General  Right  of  Appeal — Only  such 
questions  of  law  as  are  reserved  in  conformity  to  the  provisions 
of  the  statute  will  be  considered  in  cases  where  the  appeal  is 
prosecuted  by  the  State  under  the  statutory  provisions  giving 
an  appeal  upon  reserved  questions.  The  statute  does  not  con- 
fer upon  the  State  a  general  right  of  appeal  ;  on  the  contrarv. 
the  right  is  limited  to  the  classes  of  cases  specified.  Hence  ii 
is  correctly  held  that  it  is  only  the  specific  questions  properly 
made  and  saved  that  can  be  considered  on  appeal.3 

§  279.  How  Questions  of  Law  may  arise — Questions  of  law  mov 
arise  in  various  ways  and  such  questions  are  available,  when 
properly  saved  and  exhibited,  no  matter  at  what  stage  of  the 
proceedings,  prior  to  final  judgment,  they  arise,  but,  of  course. 
until  there  is  a  final  judgment4  there  can  be  no  appeal.     Such 

1  It  is  implied,  of  course,  that  the  ex-  thorized  to  consider  upon  this  appeai 
ception  must  be  such  as  presents  the  any  question  not  made  and  reserved 
question  sought  to  be  reserved  for  re-  upon  the  trial  below,  this  appeal  being 
view.                                                  ,  only  upon  a   specific   question   reserved 

2  Fouty   v.    Morrison,    73    Ind.   333;  by  the  State."    All  the  authorities  point 
Short  v.  Stutsman,  Si  Ind.  115.    Where  in  one  direction,  and  that   is,  that  there 
the  law   provides   tor    presenting  ques-  must  be  a  specific  ruling  made,  a  direct 
tions  by  an  exception  the  taking  of  the  exception,  and  a  bill  of  exceptions  eru- 
ption   and    its     reservation    in    the  bodj'ing   the   ruling,  the  exception    and 

manner  prescribed  are  all  that  need  be  such   facts  as  are    necessary    to  enable 

done,   for   the    exception    notifies   the  the  appellate  tribunal  to  understand  and 

court  of  the  intention  to  challenge  the  decide  the  particular  question  reserved. 

ruling  on  appeal  and  the  incorporation  *  Where  there   is  a  ruling  finally  de- 

ot   the  exception  in  the  record  properly  termining  the    case    an   appeal   will   lie, 

rves  it-  force,  although  there  may  be  no  formal  order 

8  State  t>.  Lusk,  68  Ind.  264,     In  this  discharging  the  accused.    State  v.  Allen, 

the  court    said,    "We  are   of  the  94  Ind. 441. 
opinion,  however,  that  we  are  not  au- 


APPEALS  IN   CRIMINAL    CASKS.  239 

questions  may  arise  on  the  giving  of  instructions  or  on  the  re- 
fusal to  give  instructions.1  They  may  arise  on  rulings  admitting 
or  excluding  evidence.2  Refusal  to  permit  an  amendment  may 
present  a  question  of  law,3  but,  ordinarily,  no  available  question 
can  arise  on  such  a  ruling  since  the  matter  of  permitting  or  re- 
fusing to  permit  an  amendment  is  to  a  great  extent  one  of  dis- 
cretion. It  is  very  seldom,  indeed,  that  the  prosecuting  attor- 
ney will  be  justified  in  appealing  a  case  upon  a  ruling  denying 
leave  to  amend.  It  has  been  held  that  the  State  may  by  ap- 
peal present  the  question  as  to  the  correctness  of  a  ruling  dis- 
charging a  jury,'  and  it  may  be  said,  generally,  that  all  ques- 
tions of  law  arising  upon  a  ruling  discharging  an  accused  may 
be  reserved  by  the  State.5 

§  280.  What  the  Record  must  show — In  considering  what  the 
record  must  show  in  order  to  entitle  the  State  to  have  the  ques- 
tions sought  to  be  presented  examined  and  determined,  it  is 
proper  to  begin  with  the  statement  that  all  appeals  are  tried 
by  the  record,6  and  that  nothing  is  part  of  the  record  which 
is  not  incorporated  in  it  according  to  law.  Thus,  statements 
of  the  clerk  and  mere  recitals  of  facts  in  motions  are  not  parts 
of  the  record.7     The  record  must  show   a  final  judgment  of 

1  State  v.  Berdetta,  73  Ind.  1S5;  State  v.  State,  122  Ind.  141;  Pattee  v.  State, 
v.  Hallowell,  91  Ind.  376;  States.  Sevier,  109  Ind.  545;  Hollingsworth  v.  State, 
117  Ind.  33S;  State  v.  Ward,  75  Iowa,  m  Ind.  289;  Brown  v.  State,  in  Ind. 
637,  36  N.  W.  Rep.  765.  441;    Duncan    v.    State,  S4   Ind.    204; 

2  State  v.  Turner,  Si  Ind.  559.  Archibald  v.  State,  122  Ind.  122,  23  N. 

3  State  v.  Frain,  S2  Ind.  532;  State?'.  E.  Rep.  758;  Meredith  v.  State,  122 
Walker,  26  Ind.  346.  Ind.  514,  24  N.  E.  Rep.  161;   Lawrence 

*  Commonwealth  v.  Matthews  (Ky.),  v.  Commonwealth,  86  Va.  573,  10  S.  E. 

12  S.  W.  Rep.  323.  Rep.  840;   Sisson  v.  State,  77  Wis.  273, 

5  State  v.  Wilson,  50  Ind.  4S7;  State  45  X.  W.  Rep.  1130;  Huffman  v.  State, 
v.  Lenig,  42  Ind.  541;  State  v.  Leach,  2S  Tex.  App.  174,  12  S.  W.  Rep. 
120  Ind.  124.  588;     State     v.    Reed    (Mo.),    S.    W. 

6  People  v.  Brennan,  79  Mich.  362,  44  Rep.  1010;  State  v.  Carter,  9S  Mo. 
N.  W.  Rep.  61S;  State  v.  Atkinson,  33  176.  11  S.  W.  Rep.  624.  It  is  hardly 
So.  Car.  100,  11  S.  E.  Rep.  693;  People  necessary  to  say  that  the  rule  stated 
v.  Callaghan,  4  Utah,  49,  6  Pac.  Rep.  applies  in  all  cases,  for  it  applies  as 
49;  Evans  v. Commonwealth  (Ky.),  12  S.  well  to  appeals  by  the  State  as  to 
W.  Rep.  76S;  State  v .  Potts,  20  Neb.  appeals  by  the  accused.  The  cases 
789,  22  Pac.  Rep.  7^4.  cited  show  the  application  of  the  settled 

T  State  v.  Cooper,  103  Ind.  7^;   Dolan     general  rule  in  a  great  variety  of  forms 


2  u  APPELLATE  l'K<  (CEDl   RE 

acquittal.1  Where  an  amendment  is  sought  to  be  made  the 
id  must  show  the  proposed  amendment  or  no  question  will 
be  presented.2  Where  leave  to  rile  a  substituted  affidavit  in 
support  of  an  information  is  asked,  the  proffered  affidavit  must 
be  properly  incorporated  in  the  record.3  An  agreement  by  the 
counsel  for  the  accused  can  not  take  the  place  of  a  record,4  al- 
though such  an  agreement  might  be  effective  to  supply  omis- 
sions made  in  transcribing  the  record  as  actually  made  by  the 
trial  court.  The  conclusion  to  which  the  cases  lead  is  that  the 
State  must  bring  into  the  record  by  a  bill  of  exceptions  all  ex- 
trinsic facts,  all  special  or  collateral  motions,  all  collateral  affi- 
davits and  the  like,  or  no  question  will  be  presented.  It  is,  in- 
deed, not  possible  to  present  reserved  questions,  except  such  as 
arise  on  the  record  proper,  without  a  bill  of  exceptions.5 

§  281.  Defective  Record — If  so  much  of  the  record  is  properly 
brought  to  the  appellate  tribunal  as  will  enable  the  court  to  un- 
derstand and  decide  the  questions  presented  by  the  State,  the 
appeal  will  not,  as  it  has  been  held,  be  dismissed,  but  the  ac- 
cused may,  by  certiorari ,  supply  defects  or  omissions/'  The 
case  to  which  we  refer  states  the  doctrine  somewhat  too  broadly. 
If  the  transcript  shows  on  its  face  that  it  is  so  defective  as  not 
to  present  the  question  fully  and  fairly,  both  to  the  State  and  to 
the  defendant,  the  appeal  ought  not  to  be  entertained.  The 
language  of  the  statute,  as  well  as  the  rule  declared  by  the  ad- 
judged cases,  clearly  means  that  the  State  must  bring  up  such 
a  record  as   shall   fairly  and  justly  exhibit  the  questions.7     If, 

1  State  v.  Hallowell,  91  Ind.  376;  State  thus  made  did  not  bring  into  the  record 

Wheeler,  65   Iowa,  619.      The  doc-  either  the  motion  by  the  State's  attor- 

trine  that  consent  can  not  give  juris-  nev  or  the  ruling  thereon.     The  only 

diction  where  there  is  no  final  judgment  way   in   which  they   could   be  brought 

applies  to  appeals  by  the  State  as  well  into  and  made  part  of  the  record  was  by 

as  to  appeals  by  the  accused.     State  v.  a  bill  of  exceptions." 

Davis.  47  Iowa,  634.  6  State  v.  Weil,  89  Ind.  2S6. 

Frain,  82  Ind.  532.  7  The  statute,  as  has  been  held  by  the 

3  State  v.  McKee,  109  Ind.  497.  court  from  the  first  decision  to  the  last, 

'  State  v.  Davis,  47  Iowa,  634;    State  confers  a  special  right  upon  the  State, 

v.   Wheeler,  <>;;    Iowa.  619.       See,  also,  and  to  secure  the   right  thus  conferred 

-.  Burnett,  tig  Ind.  \ui.  the   requirements   of  the  law  must  be 

5  In  the  case  of  the  State  v.  McKee.  strictly  obeyed. 

109  Ind.  497.  it   was   said:     ''The  entry 


APPEALS  IN  CRIMINAL    CASES.  241 

however,  there  is  a  defect  relating  merely  to  a  matter  not  es- 
sential to  a  full  understanding  of  the  question  it  may  be  disre- 
garded, or  an  amendment  may  be  ordered. 

§  282.  The  Initial  Step — Notice — An  appeal  by  the  State  is  begun 
by  serving  a  written  notice  upon  the  clerk,  of  the  court  where 
the  judgment  was  rendered,  and  by  serving  a  like  notice  upon  the 
defendant  or  his  attorney,  if  either  can  be  found,  but  if  neither 
the  defendant  nor  his  attorney  can  be  found,  the  notice  must  be 
posted  for  three  weeks  in  a  conspicuous  place  in  the  clerk's 
office.'  The  notice  must  show  that  the  State  appeals  from  a 
particular  judgment  and  that  judgment  should  be  identified  with 
reasonable  certainty.  Notice  is  indispensable  to  an  appeal  by 
the  State,2  and  it  must  be  given  as  the  statute  directs.3  It  is 
said  in  some  of  the  cases  that  the  notice  constitutes  the  appeal, 
but  this  can  not  be  correct,  for  merely  giving  notice  does  not 
constitute  an  appeal  in  the  true  sense.4  It  is,  indeed,  but  one 
step  towards  taking  an  appeal,  as  all  the  well  considered  de- 
cisions prove,  and  as  will  hereafter  be  shown. 

§  283.   Notice  is  merely  one  step  towards  perfecting  the  Appeal — 

All  the  provisions  of  the  statute  must  be  taken  into  consider- 
ation, and  so  they  have  been  in  the  cases  in  which  the  question 
as  to  what  constitutes  an  appeal  has  been  fullv  considered  and 
decided.5     It  is  perfectly  clear  upon  a  consideration  of  all  the 

1  R.  S.,  §  1S87.  the  appeal,  jet  the  decisions  themselves 

2  McLaughlin  v.  State,  66  Ind.  193;  show  that  there  is  no  appeal  unless  the 
Buell  v:  State,  69  Ind.  125;  Darr  v.  transcript  is  filed  within  the  time  lim- 
State,  82  Ind.  11.  ited.     If  it  be  true  that  the  failure  to  file 

3  Quick  v.  State,  73  Ind.  147,  148.  the  transcript  within  the  time  specified 

4  It  is  obvious  that  there  is  no  effect-  requires  a  dismissal,  it  must  be  true  that 
ive  appeal  until  the  jurisdiction  of  the  no  valid  appeal  has  been  taken,  since  it 
appellate  tribunal  attaches,  and  juris-  is  logically  inconceivable  that  a  valid 
diction  can  not  attach  where  there  is  appeal  can  be  dismissed.  To  so  hold 
nothing  upon  which  the  appellate  tri-  is  to  adjudge  that  an  appeal  taken 
bunal  can  act.  A  mere  notice  can  not  according  to  law  is  no  appeal.  We 
call  into  exercise  the  appellate  jurisdic-  have,  perhaps,  given  this  question  more 
tion;    much  more  is  required.  attention  than  necessary,  but  our  apol- 

5  Winsett  v.  State,  54  Ind,  437;  Far-  ogy  is  that  some  of  the  decisions  indi- 
rell  v.  State,  85  Ind.  221;  Price  v.  State,  cate  that  the  notice  constitutes  the  ap- 
74  Ind.  553.  While  it  is  said  in  some  peal  and  it  seems  proper  to  show  that 
of  the  cases  that  the  notice  constitutes  such  a  doctrine  is  erroneous. 

16 


242  APPELLATE   PROCEDURE. 

statutory  provisions  that  the  mere  notice  does  not  constitute  an 
appeal,  and  this  conclusion  is  obvious  when  it  is  brought  to 
mind  that  until  the  record  and  the  assignment  of  errors  are 
properly  before  the  appellate  tribunal  there  is  nothing  invoking 
the  exercise  of  appellate  jurisdiction.  It  is  inconceivable  that 
there  can  be  an  appeal  in  the  true  sense  until  the  case  gets  into 
the  appellate  tribunal  according  to  law,  for  it  is  only  upon  the 
record  that  appeals  can  be  tried  and  determined.  The  truth  is 
that  the  notice  is  but  a  step  in  the  appeal,  although  it  is  an  im- 
portant one.  It  is  not,  at  all  events,  all  that  is  essential  to  an 
appeal,  for  it  is  not  possible  to  consider  the  notice  as  the  appeal 
without  disregarding  settled  rules  of  law,  as  well  as  important 
provisions  of  the  statute. 

§  284.   Time  within  which  the  State  must  perfect  the  Appeal — 

The  language  employed  in  the  statute  and  in  the  decisions  upon 
the  subject  leaves  the  question  of  the  time  within  which  an  ap- 
peal may  be  perfected  in  confusion,  but  it  seems  to  us  that  this 
confusion  may  be  cleared  away  by  a  just  application  of  funda- 
mental principles.  The  general  words  of  the  statute  conferring 
the  right  of  appeal  in  criminal  cases  are  mandatory  ;  they  are 
these:  "All  appeals  must  be  taken  within  one  year  after  the 
judgment  is  rendered."1  If  this  provision  stood  alone  there 
could  be  but  little  doubt  that  all  that  is  necessary  to  constitute 
a  lull  appeal  must  be  done  within  one  year,  but  other  provisions 
must  be  considered.2  In  another  place  it  is  provided  that  "  an 
appeal  is  taken"  by  giving  notice,  and  in  the  same  section  as 
that  from  which  we  first  quoted,  it  is  provided  that  "  the  tran- 
script must  be  filed  within  ninety  days  after  the  appeal  is  taken." 
It  is  evident  that  the  term  "  taken"  does  not  mean  a  perfected 
appeal,  for  if  that  meaning  be  ascribed  to  the  term,  then  all 
that  is  essential  to  an  appeal  is  to  give  notice,  but  this  can  not 
be  true,  as  the  statute  commands  that  the  transcript  shall  be 
filed  within  ninety  days.  The  word  "taken"  must,  as  we 
think,  be  construed  to  mean  begun,  for  it  can  not  be  held  to 
mean  that  an  appeal  is  perfected,  since  that  would  involve  the 
absurdity  of  holding  that  all  that  is  necessary  to  constitute  an 

1  R.  S.,  §  1SS5;  ante,  §  [28.  2  R.  S.,  §  1S87. 


APPEALS   IN    CRIMINAL    CASES.  243 

appeal  is  the  notice,  and  that  all  the  procedure  is  confined  to 
the  trial  court.  In  strictness  an  appeal  is  not  taken  until  the 
cast-  is  before  the  appellate  tribunal  according  to  law,  and  that 
it  can  not  possibly  get  there  upon  a  mere  notice  is  entirely  clear.1 
The  loose  expressions  in  some  of  the  cases  that  notice  consti- 
tutes the  appeal  can  not,  therefore,  be  deemed  authoritative.  No 
one  of  the  cases  upon  the  subject,  so  far  as  our  examination  has 
enabled  us  to  discover,  holds  that  the  time  for  perfecting  an 
appeal  may  be  prolonged  beyond  the  time  designated,  or  that 
the  appeal  is  fully  taken  by  giving  notice.2  The  expressions 
contained  in  many  of  the  cases  bearing  upon  the  question  in- 
dicate a  conclusion  in  accordance  with  the  view  we  have  ex- 
pressed.3 Unless  the  notice  perfects  the  appeal  it  can  not  be 
said  to  be  fully  taken,  and,  certainly,  until  so  taken  it  is  not 
pending  in  the  appellate  tribunal.  That  the  notice  does  not 
perfect  the  appeal  has  been,  in  effect,  decided.4  The  Iowa 
statute  is  very  similar  to  ours  ;  there  is,  indeed,5  no  substantial 
difference,  and  it  was  held  by  the  Supreme  Court  of  that  State 
that  the  appeal  must  be  taken  within  one  year  from  the  time  the 
judgment  was  rendered.  It  was  also  held  that  the  time  for 
perfecting  the  appeal  could  not  be  extended  by  agreement.6 

1  To  hold  that  the  mere  notice  con-  unless  within  a  year  from  the  date  of 
stitutes  the  appeal  would  be  contrary  to  the  judgment  a  new  notice  of  appeal 
authority  and  subversive  of  principle,  shall  be  served."  In  McLaughlin  v. 
Ante,  §§  12S,  162.  State,  66  Ind.  193,  it  was  said:     "  If  we 

2  In  Winsett  v.  State,  54  Ind.  437,  all  had  proof  that  proper  notice  of  an  ap- 
the  steps  were  taken  within  the  year,  peal  had  been  given  within  the  year 
and  the  only  question  for  decision  was  during  which  an  appeal  was  allowed, 
as  to  the  effect  of  the  failure  to  file  the  still  this  appeal  could  not  be  sustained." 
transcript  within  thirty  days  after  the  *  In  Buell  v.  State,  69  Ind.  125.it  was 
notice  was  given.  This  is  true  of  the  said:  "As  the  transcript  of  the  cause 
case  of  State  v.  Walters,  64  Ind.  226,  was  not  filed  within  thirty  days  there- 
and  so  it  is  of  the  cases  of  Buell  v.  after,  the  appeal  would  not  have  been 
State,  69  Ind.  125;  Price  v.  State,  74  perfected  in  accordance  with  the  re- 
Ind.  553.  quirements  of  the  statute."     See  Lich- 

3  In   Farrell   v.  State,  85   Ind.  221,  it  tenfels  v.  State,  53  Ind.  161;  post,  ; 
was  said:     "  For  ninety  days  after  the         5  2  McClain's  Stats,  of  Iowa.  §§  5907, 
service    of   the    notice    the    appellee  is  5909. 

bound  to  take  notice  of  the  filing  of  the  "State     v.    Fleming,    13     Iowa.    443. 

transcript,  but.  if  it   is   not   filed  within  It  was   said   by  the  court,  that:      "This 

that    time,   the   appellee    may    presume  court  can  not,  under  this  provision,  ac- 

that    the   appeal    has  been    abandoned,  quire   jurisdiction  until  there  has  been 


:\\ 


APPELLATE    PROCEDURE. 


285.  Time — Waiver — It  has  been  held  that  the  defendant 
may  waive  his  right  to  avail  himself  of  the  failure  to  file  the 
transcript  within  the  time  prescribed.1  But  we  believe  that  this 
doctrine  is  erroneous  and  it  certainly  can  not  be  extended  with- 
out violating  principle  and  opposing  authority.  It  can  not,  at 
all  events,  be  so  extended  as  to  sustain  an  appeal  where  the 
important  steps  have  not  been  taken  until  after  the  expiration 
of  one  year  from  the  time  the  judgment  was  rendered.  If  the 
statute  is  not  so  far  complied  with  as  to  enable  the  appealing 
party  to  file  the  transcript  within  one  year  and  ninety  days  af- 
ter the  judgment  was  rendered  the  appellate  tribunal  can  not, 
as  we  believe,  entertain  jurisdiction,  except  in  cases  where 
fraud  or  some  such  cause  is  shown  excusing  the  delay  and 
making  a  case  for  relief  under  the  general  and  inherent  power 
to  prevent  fraud  or  oppression.2     There  is  an  explicit  and  direct 


judgment  rendered.  The  parties  can 
not,  even  by  agreement,  appeal  from 
the  ruling  of  the  district  court  upon  a 
motion  to  quash  or  a  demurrer  to  an 
indictment.  There  must  be  a  judgment 
rendered  before  either  party  can  appeal. 
The  same  may  be  said  with  reference 
to  the  latter  clause  of  this  section.  It 
is  equally,  if  not  more,  imperative.  It 
i>  the  policy  of  the  criminal  law  that  all 
criminal  litigation  should  be  as  early 
terminated  as  possible.  In  view  of  this 
policy  this  provision  was  enacted.  If  a 
party  fails  to  prosecute  his  appeal  for 
one  year  after  judgment  such  right  is 
forever  at  an  end,  and  this  court  has  no 
power  to  entertain  jurisdiction  of  a 
cause  after  this  time  has  elapsed.  Nor 
do  we  think  that  the  attorney  for  the 
can  confer  such  jurisdiction." 
I  i  former  chapter  (Chapter  V,  "  Time 
within  which  an  Appeal  may  be 
Taken"),  we  collected  many  cases  hold- 
thal  time  can  not  be  extended  by 
agreement,  and  to  them  may  be  added 
Medcalf  v.  Commonwealth.  84  Ky.  485; 
Stratton  v.  Commonwealth,  84  Ky.  [90. 
See  State  v.  Davis,  47  Iowa.  ' 
1  Statef.  Walters,  64  End.  226.    Time, 


as  we  have  shown  in  Chapter  V,  is 
jurisdictional,  and  while  it  may  be  pos- 
sible that  a  party  can  waive  strict  per- 
formance of  one  step  in  perfecting  an 
appeal,  we  think  it  quite  clear  that  he 
can  not,  by  agreement,  express  or  im- 
plied, extend  the  time  beyond  that  fixed 
by  law.     Ante,  §§  ill,  112,  128,  162. 

2  The  decision  in  the  case  of  the 
State  v.  Walters,  64  Ind.  226,  does  not 
oppose  this  conclusion,  for  in  that  case 
all  the  acts  essential  to  the  appeal  were 
performed  within  the  year.  As  ap- 
pears from  the  quotations  made  from 
the  decided  cases  the  clear  implication 
is  that  the  notice  must  be  served  within 
the  year  or  there  can  be  no  appeal. 
This  is  the  interpretation  put  upon  the 
case  above  named  by.  the  court  in  the 
case  of  West  v.  Cavins,  74  Ind.  205, 
where  that  case  was  cited,  and  it  was 
said:  "An  agreement  to  submit  made 
within  the  year  allowed  for  the  appeal 
and  a  postponement  of  the  motion  to 
dismiss  beyond  that  time  in  good  con- 
science  should  be  held  to  constitute 
such  waiver.''  In  our  judgment  all  the 
acts  essential  to  an  appeal,  such  as  fil- 
ing  the  transcript,  and  assigning  error, 


APPEALS  IN  CRIMINAL    CASES.  245 

decision  in  support  of  the  proposition  that  the  appeal  must  be  per- 
fected within  one  year  and  ninety  days  from  the  time  the  judg- 
ment was  rendered,1  and,  as  the  question  was  there  directly 
presented  and  judgment  directly  given  upon  it,  the  decision 
must  probably  be  considered  as  closing  the  question.  It  does 
unquestionably  affirm  that  time  is  jurisdictional,  and  that  the 
notice  does  not  constitute  the  appeal.  It  may  be  doubted 
whether  the  decision  that  the  time  for  appealing  is  one  year 
and  ninety  days  is  right,  since  there  is  strong  reason  for  the  con- 
clusion that  the  law  means  that  the  appeal  shall  be  fully  perfected 
within  one  year,  but  there  can  be  no  doubt  that  the  decision 
that  notice  alone  does  not  constitute  the  appeal  is  correct 

§  286.  Appeal  by  Defendant — Appeals  by  defendants  in  crim- 
inal cases,  so  far  as  the  time  of  taking  an  appeal2  and  the  mode 
of  giving  notice  are  concerned,  are  governed  by  substantially 
the  same  rules  as  those  governing  appeals  by  the  State,  except 
as  to  the  service  of  notice.  Where  a  defendant  appeals  it  is 
sufficient  to  serve  notice  upon  the  prosecuting  attorney.3     The 

as  well  as  giving  notice,  must  be  done  is  that  until  the  transcript  is  filed  there 
within  the  time  fixed  bylaw.  But  ir-  is  no  appeal.  The  effect  of  the  decision 
regularities  and  informalities  may  be  is  that  a  case  is  not  in  the  appellate  tri- 
waived.  Beggs  v.  State,  122  Ind.  54,  55.  bunal  unless  there  has  been  perform- 
1  Lichtenfels  v.  State,  53  Ind.  161.  ance  of  the  entire  series  of  required  acts. 
In  the  case  cited  the  question  came  It  may  be  remarked  that  section  18S9  of 
before  the  court  on  a  motion  to  dis-  the  criminal  code  (R.  S.  1SS1)  recognizes 
miss  the  appeal,  and  it  was  the  only  the  difference  between  the  appeal  and 
question  in  the  case.  In  giving  judg-  the  notice,  as  witness  the  words,  "An 
ment  the  court  said:  "The  judgment  appeal  shall  stand  for  trial  immediately 
was  rendered  at  the  April  term,  1S74.  after  filing  the  transcript  and  the  notice 
The  transcript  was  filed  in  this  court  of  appeal."  It  may  also  be  noted  that 
on  the  15th  day  of  June,  1S76.  This  at  the  time  the  decision  referred  to  was 
was  too  late.  The  appeal  must  be  taken  made  the  statute  required  the  transcript 
within  one  year  after  the  judgment  is  to  be  filed  within  thirty  days  after  no- 
rendered,   and   the  transcript  must    be  tice. 

filed  within  thirty  days  after  the  appeal         2  The  appeal  must  be  perfected  with- 

is   taken.      The    transcript    must    have  in  one   year  and   ninety  days  from  the 

been    filed  within  one  year  and  thirty  time  the  final  judgment  was   rendered. 

days   after  the   rendition   of  the  judg-  Ante.,  §$  284,  285;   Lichtenfels  v.  State, 

ment.      This   was   not   done."      While  53  Ind.  161. 

there  is  confusion  produced  by  the  in-         3  R.  S.,  *}  1S87;   Darr  v.  State,  82  Ind. 

accurate  use  of  the  term  the  "appeal  is  11. 
taken,"  yet  it  is  clear  that  the  decision 


246 


APPELLATE   PROCEDURE. 


criminal  code  does  not  provide  for  appeals  in  term  so  that  all 
appeals  must  he  taken  upon  notice  given  as  the  law  requires." 
Notice  ma}-  be  waived  ;  this  is  so  by  express  enactment,  and  it 
would  be  so  upon  general  principles  unless  forbidden  by  posi- 
tive law.2 

§  287.  Defendants  given  a  general  right  of  Appeal — What  must 
be  done  to  perfect  an  Appeal — A  defendant  in  a  criminal  case  is 
given  an  appeal  as  of  right,  and  the  right  is  a  general  and  com- 
prehensive one,  since  all  intermediate  errors  may,  if  appropri- 
ately saved,  be  presented  for  review.  But  the  right  given  by 
the  statute  must  be  exercised  under  its  provisions  and  the  es- 
sential acts  required  to  effect  an  appeal  must  be  performed 
within  the  time  prescribed.  If  there  is  a  substantial  compliance 
with  the  requirements  of  the  statute  the  appeal  can  not  be  dis- 
missed,3 for  a  dismissal  for  any  defect  or  informality  in  taking 
the  appeal  is  forbidden.4  A  second  appeal  may  be  taken  if  the 
fust  is  ineffective,  because  not  properly  perfected,  but  it  must, 
as  the  statute  declares,  be  taken  "  within  the  year."5  The 
words  "within  the  year"  mean,  it  is  evident,  the  year  desig- 
nated in  a  preceding  section  of  the  statute,6  and  it  is  difficult  to 
perceive  how  they  can  be  construed  to  mean  a  year  and  ninety 
days,  but  that  is  the  construction  adopted  in  the  case  heretofore 
cited.7     The  conclusion  we  suggest  seems  to  be  required  by  the 


1  McLaughlin  v.  State,  66  Ind.  193; 
Buell   v.   State,   69   Ind.   125;    Beck  v. 

.  72  Ind.  250. 

2  R.  S..  §  18S3. 

3  In  Beggs  f.  State,  122  Ind.  54,  it 
was  said:  "In  the  ordinary  course  an 
appeal  is  taken  in  a  criminal  case  by 
serving  notice  on  the  prosecuting  at- 
torney that  the  appellant  appeals  to  the 
Supreme   Court,   and   by  filing  a  tran- 

p1  in  the  clerk's  office  within  ninety 
day-  alter  such  appeal  or  notice.  In 
the  present  case  a  transcript  was  filed, 
after  which  notice  was  served  upon  the 
prosecuting  attorney  that  an  appeal  had 
been  taken.  All  this  was  done  within 
the  time  in  which  an  appeal  could  have 
taken.     While  not  a   literal  com- 


pliance with  the  statute,  it  is  in  sub- 
stantial conformity  therewith,  and  must 
be  held  to  constitute  an  appeal."  It  is 
important  to  note  that  this  decision  de- 
clares, as  we  have  done,  that  the  acts 
required  by  the  statute  must  be  done 
within  the  time  prescribed. 
*  R.  S.,  §  1890. 

5  R.  S..  §  1S90. 

6  R.  S..  §  iSS5. 

7  Lichtenfels  v.  State,  53  Ind.  161. 
Unless  the  transcript  is  filed  in  the 
clerk's  office  of  the  Supreme  Court 
within  one  year  and  ninety  days  the 
appellate  tribunal  can  not  entertain 
jurisdiction.  Hardt  v.  State,  13  Texas 
A  pp.  426.     See,  ante,  §§  2S4,  285. 


APPEALS  IN   CRIMINAL    CASES.  247 

language  of  the  statute  and  by  the  decisions.     It  is  certainly 
required  by  the  rules  declared  in  analogous  cases. 

§  288.  Appeal  by  one  of  Several  Defendants — One  of  several  de- 
fendants may  appeal,  and  no  notice  to  co-parties  is  required.1 
An  appeal  in  a  criminal  case  stands  for  trial  "  immediately  after 
filing  the  transcript  and  notice  of  appeal,  if  the  Supreme  Court 
is  in  session  ;  if  not  in  session,  at  the  next  term  thereof."2  The 
case  may  be  submitted  immediately  upon  filing  the  transcript 
and  notice.3  A  brief  must  be  filed  by  the  appellant  within  sixty 
days  atter  the  submission  or  the  appeal  will  be  dismissed.4 
Error  must  be  assigned  or  no  quesions  will  be  presented. :'  The 
rule  governing  the  assignment  of  errors  is  substantially  the 
same  in  criminal  cases  as  it  is  in  civil  cases  and  the  rules  stated 
in  another  place  govern  the  procedure  in  criminal  cases.6 

§  289.  Waiver  of  Right  of  Appeal — The  doctrine  of  waiver  has 
a  wide  and  important  influence  in  criminal  cases  as  well  as  in 
civil.  It  underlies,  in  fact,  all  the  cases  which  hold  that  the 
failure  to  interpose  timely  and  proper  objections  in  the  trial 
court  precludes  an  accused  from  taking  advantage  of  rulings  on 
appeal.  Many  rulings  that  would  be  available  on  appeal  if 
timely  and  specific  objections  had  been  made  in  the  trial  court 
will  not  be  available  because  of  the  failure  to  make  the  appro- 
priate  objections   in  the  court  of  original   jurisdiction.7     The 

1  R.  S.,  ()  1SS6.  ing  tendering  an  issue  of  law  only,  and 

2  R.  S.,  §  18S9.  must  be  signed  by  the  party  or  his  at- 
8  Rule  XVIII.  torney."     State  v.  Delano,  34  Ind.  52. 

4  Rule  XVIII.  6  "The  Assignment  of  Errors,"  Chap- 

5  Sturm  v.  State,  74  Ind.  278;  Thoma     ter  XVI. 

v.  State,  86  Ind.  1S2;  Burst  v.  State,  SS  7  This  principle  is  illustrated  in  crim- 

Ind.  341;    Powers  v.  State,  87  Ind.  144,  inal  cases  by  the  decisions  which  hold 

153;  Millikanr.  State,  70  Ind.  2S3;  Burke  that  where  objections  to  an  indictment 

V .  State,  47  Ind.  52S;  Malott  v.  State,  are    not    made  until  after  verdict  they 

26  Ind.  93.     "The  errors  must  be  spe-  will  be  of  no  avail,  although  thev  would 

daily  assigned."     Boswell  v.    State,  8  have   been    available   on   a   motion  to 

Ind.  499.     The  decisions  place  civil  and  quash.     Nichols  v.  State,  127  Ind.  406, 

criminal  cases   substantially   upon   the  26  N.  E.  Rep.  S39.     In  civil  practice  the 

same  footing  so  far  as  concerns  the  as-  principle  is  illustrated  by  the  numerous 

signment  of  errors.    Sturm  v.  State,  su-  cases  which  hold  that  defects  in  plead- 

fra.  "An  assignment  of  error  is  a  plead-  ings  are  cured  by  the  verdict.     Jenkins 


248 


APPELLATE  PROCEDURE. 


right  of  appeal  itself  may  be  waived.  It  is  waived  by  an  ac- 
cused who  flees  and  becomes  a  fugitive  from  justice.1  Some 
of  the  courts  have  carried  the  doctrine  of  waiver  so  far  as  to 
hold  that  payment  of  the  fine  waives  the  right  of  appeal,  but 
this  we  believe  to  be  wrong,  for,  in  our  opinion,  a  defendant 
who  simply  pays  a  fine  adjudged  against  him  does  not  consent 
t  j  the  judgment,  inasmuch  as  he  only  does  what  the  organ  of 
the  law  exacts  and  what  it  may  be  necessary  for  him  to  do  in 
order  to  escape  imprisonment.2  The  principle  we  are  consid- 
ering finds  a  striking  illustration  in  a  case  wherein  it  was  held 
that  a  defendant  who  had  received  a  pardon  might  prosecute 
an  appeal.3  Where  the  positive  law  imperatively  fixes  a  time 
to  which  the  execution  of  a  death  sentence  must  be  postponed, 
the  failure  to  object  will  not  waive  the  right  to  make  the  ques- 
tion on  appeal.4  Some  of  our  own  decisions  break  in  upon  the 
established  doctrine  of  waiver  to  an  extent  that,  as  we  have 
elsewhere  said,  can  not  be  vindicated  upon  principle  or  author- 


V.  Rice,  S4  Ind.  342,  Du  Souchet  v. 
Dutcher,  113  Ind.  249;  Taylor  v.  John- 
son, 113  Ind.  164;  Orton  v.  Tilden,  no 
Ind.  131.     See  Waiver. 

1  Sargent  v.  State,  96  Ind.  63;  Mc- 
Corkle  v.  State,  14  Ind.  39;  Heath  v. 
State.  101  Ind.  512;  Smith  v.  United 
States,  94  U.  S.  97;  Commonwealth  v. 
Andrews,  97  Mass.  543;  Leftwich  v. 
Commonwealth,  20  Gratt.  716;  People 
v.  Genet,  59  N.  Y.  So,  17  Am.  Rep.  315; 
People  :•.  Redinger,  55  Cal.  290,  36  Am. 
Rep.  32;   Bonahan   v.  Nebraska,  125  U. 

,:.  S  Sup.  Ct.  Rep.  1390;  State  v. 
Murrell,  33  So.  Car.  S3,  n  S.  E.  Rep. 
6S2. 

2  As  we  have  shown,  payment  of  a 
judgment  by  the  'defendant  in  a  civil 
action  does  not  waive  the  right  of  ap- 
peal, and  there  is  much  stronger  reason 
for  holding  that  it  should  not  have  that 
effect  in  criminal  cases  than  there  is  in 
civil  action-,      liver   v.  Norton,  26  Ind. 

Ainu-  v.  Chappel,  2S  Ind.  469; 
Hill  v.  Starkweather,  30  Ind.  434;  Bel- 
ton  v.  Smith.  45  Ind.  291. 


s  Eighmy  v.  People,  7S  N.Y.  330.  It 
was  said  in  this  case  that:  "The 
pardon  issued  because  he  was  deemed  a 
lit  subject  of  mercy,  and  in  consequence 
of  it  the  sentence  was  not  enforced,  but 
from  the  judgment  until  reversed  in- 
jury may  be  presumed.  The  defendant 
may  not  be  punished  according  to  its 
terms,  but  the  infamy  and  discredit  to 
which,  by  it,  he  is  subjected  will  re- 
main.'' For  interesting  and  instruct- 
ive decisions  of  the  subject  of  pardons, 
see  Mr.  Thornton's  article  on  "  Pardon 
and  Amnesty,"  6  Crim.  Law  Mag. 
457,  and  his  note  to  Woodward  v.  Mur- 
dock,  13  Crim.  Law  Mag.  71.  See, 
also,  for  a  general  statement  of  the 
effect  of  a  pardon,  Butler  v.  State.  9J 
Ind.  37S,  3S3.  As  to  the  right  of  appeal, 
generally,  because  of  the  effect  of  the 
judgment,  see  Johnson  v.  Common- 
wealth. 87  Kv.  1S9,  13  S.  W.  Rep.  520; 
State  V.  Gilmore,  2S  Mo.  App.  561. 

4  Koerner  v.  State,  96  Ind.  243.  See 
Wartner  v.  State,  102  Ind.  51. 


APPEALS   IN    CRIMINAL    CASES.  249 

ity.  We  refer  to  the  cases  wherein  it  was  held  that  an  accused 
might  plead  guilty,  appeal,  and  secure  a  reversal,  because  the 
indictment  for  selling  liquor  without  license  failed  to  allege  that 
the  quantity  sold  was  less  than  a  quart,  although  it  did  allege 
that  the  quantity  sold  was  "  one  gill."1  The  confession  em- 
bodied in  a  plea  of  guilty  can  not  operate  as  a  waiver  of  the 
right  of  appeal  in  a  case  where  there  is  no  law  defining 
the  offense,  and,  possibly,  it  may  not  operate  as  a  waiver  where 
there  is  not  enough  in  the  indictment  or  information  to  indicate 
the  nature  of  the  offense.  But  where  there  is  a  law  defining 
the  offense,  and  an  attempt  to  charge  the  offense  by  stating 
facts  fairly  indicating  the  general  nature  of  the  offense,  the 
plea  of  guilty  must,  as  we  are  fully  persuaded,  be  deemed  to 
waive  the  right  of  appeal.2  The  indictment,  or  information, 
may  be  radically  defective  and  yet  the  confession  contained  in 
the  plea  of  guilty  have  the  effect  to  waive  the  appeal,  for,  where 
there  is  a  confession,  deliberately  made  in  court,  that  the  de- 
fendant is  guilty  of  the  crime  which  the  allegations  of  the  in- 
dictment or  information  fairly  informed  him  is  attempted  to  be 
properly  charged,  there  is  really  no  existing  controversy,  and 
if  no  controversy,  no  jurisdiction.3  It  is  no  doubt  true  that 
where  the  trial  court  has  no  jurisdiction  the  accused  may  ap- 
peal, for  he  has  a  right  to  have  a  void  judgment  annulled,  but 
such  a  case  is  essentially  different  from   one   in  which  there  is 

1  Arbintrode    v.    State,    67  Ind.   267.  guilty,  but  the  point  is  as  to  the  right 

The  court  broadly  stated  that:     "If  it  to    confess    the    crime    assumed    to    be 

be   true   that   the  facts  alleged  do  not  charged    and  then  successfully  appeal, 

constitute  an  offense,  the  appellant  has  The  confession    is    that  the    charge    is 

lost  nothing  by  pleading  guilty."     The  true  and  sufficient,  and   the  only  possi- 

doctrine  seems  to  have  originated  in  the  ble  question  that  can  be  open  is  whether 

case    of   Henderson    v.   State,   60   Ind.  there  is  any  statute  denning  the  crime 

296,    but    no    authority    is    there    cited  assumed  to  be  charged, 

which  gives  even  the  slenderest  support  2  Casper  v.  State.  27  Ohio.  572;   Stats 

to  the  broad  doctrine  asserted.  The  cases  v.    Knowles,    34    Kan.    393;     State    v. 

cited  certainly  intimate — some  of  them,  Burthe,  39  La.  Ann.  32S. 

indeed,  assert — an  entirely  different  doc  3  Eberly    v.  Moore.    24  How.  (U.  S.) 

trine.     Hornberger  v.  State,  5  Ind.  300;  147.    158;   Scott  v.   Kelly,  22  Wall.  57; 

Hertzfield  :•.  State,  6  Ind.  23;   Stone  v.  Commonwealth  v.  McCready,  2  Metcf. 

State,  42  Ind.  41S.     The  point  is  not  as  (Ky.)  376;   People  v.  M'Kay,  iS  Johns, 

to  the  right  to  challenge  an  indictment  212:   State  v.  Kinney,  41  Iowa,  424. 
where    there    has    been    a    plea   of  not 


250 


APPELLATE  PROCEDURE 


jurisdiction  and  an  effort  to  charge  an  offense  so  fully  carried 
out  as  to  inform  the  accused  in  a  general  way  of  the  crime  in- 
tended to  be  charged  against  him. 

§  290.  Waiver  of  Errors — Errors  of  the  gravest  character 
may  be  expressly  or  impliedly  waived  by  a  defendant  in  a 
criminal  case,  and  when  once  effectively  waived  they  can  not 
be  revived  on  appeal.  Failure  to  object  to  the  competency  of 
a  judge  will  operate  as  a  waiver.1  An  accused  mav  waive  his 
right  to  the  benefit  of  the  constitutional  provision  that  he  shall 
be  confronted  by  the  witnesses  for  the  State.2  It  has  been  held 
that  a  failure  to  object  precludes  the  defendant  from  success- 
fully urging  on  appeal  that  an  indictment  was  erroneously  re- 
turned at  an  adjourned  term.3  Objections  to  the  impanel- 
ing of  the  jury,  to  the  qualifications  and  to  the  conduct  of 
jurors  are  waived  unless  seasonably  interposed,4  but  if  the 
grounds  of  the  objection  are  unknown  or  could  not  be  dis- 
covered by  the  exercise  of  prudence  and  diligence  there  is  not 
necessarily  a  waiver.  Objections  to  the  form  of  a  judgment 
must  be  made  in  the  trial  court,  and  specifically  made,  or  they 
will   not  be   available   on   appeal.     Misconduct   of  counsel   in 


1  Case  ?'.  State.  5  Ind.  1;  Smurr 
v.  State,  105  Ind.  125;  Henning  v. 
State,  [06  ind.  386,395,  55  Am.  Rep. 
756;  Kennedy  t\  State,  53  Ind.  542; 
Schlungger  v.  State,  113  Ind.  295; 
Littleton  v.  Smith,  1 19  Ind.  230;  Haves 
v.  Svkes,  120  Ind.  1S0;  Bartley  v.  Phil- 
lips, 114  Ind.  189;  Cargar  v.  Fee,  119 
Ind.  536;  Bowen  v.  Swandeer,  121  Ind. 
164.  Whatever  contusion  sonic  of  the 
earlier  cases  mav  have  created,  the  rule 
must  now  he  regarded  as  settled  that 
objections  to  a  judge  fro  tempore  must 
be  opportunely  made  in  the  trial  court. 
The  authorities  support  this  conclusion. 
State  v.  Anone,  2  Nott.  &  Mc.  27; 
Taylor:.  Skrine.  2  Const.  (S.C.)  696; 
St. ite  V.  Ailing,  [2  Ohio.  16;  State  V. 
Lowe.  21  W.  Va.  782;  Guice  v.  State, 
Miss.  714;  People  v.  Cornetti, 92  X. 
Y.  85,  SS;   State  v.  Bloom,  17  Wis.  521. 


2  Boggs  v.  State.  S  Ind.  463;  Butler 
v.  State,  97  Ind.  378;  Shular  v.  State, 
105  Ind.  2S9.  See,  generally,  Williams 
v.  State,  61  Wis.  2S1;  Wills  :.  State.  73 
Ala.  362;  State  v.  Wagner,  7S  Mo.  644, 
47  Am.  Rep.  131;  Hancock  v.  State.  14 
Texas  App.  392:  Murphy  v.  State,  97 
Ind.  579;  State  v.  Wamire,  16  Ind.  357; 
Fight  V.  State,  7  Ohio,  1S0;  Barton  r. 
State,  67  Ga.  653.  44  Am.  Rep.  743; 
United  Static  v.  Davis,  6  B latch.  464. 

3  Porter  v.  State,  2   Ind.  435. 

4  Henning  :•.  State,  106  Ind.  3S6,  and 
cases  cited  p.  395.  Barlow  v.  State, 
2  Blackf.  114.  See  Cray  -•.  State,  32 
Ind.  384;  Romaine  v.  State,  7  Ind.  63; 
Murray  v.  State,  26  Ind.  141;  Molihan 
v.  State.  30  Ind.  266;  Farrcll  v.  State, 
33  Ind.  1S3;  Harman  v.  State,  11  Ind. 
311;     Long  v.   State,  95  Ind.  4S1. 


APPEALS   IX  CRIMINAL    CASES. 


251 


argument  must  be  specifically  and  duly  objected  to  or  there 
will  be  a  waiver.  In  almost  every  conceivable  form  the  doc- 
trine of  waiver  has  been  enforced  in  criminal  cases;1  it  has 
been  enforced  in  respect  to  pleadings,  in  respect  to  changes  of 
venue,2  and  in  respect  to  the  admission  and  exclusion  of  evi- 
dence. Errors  although  saved  in  the  trial  court  may  be  waived 
by  a  failure  to  direct  attention  to  them  on  appeal,3  but  this  rule 
is  one  to  be  cautiously  applied.  It  is  entirely  safe  to  sav  that 
many  constitutional  rights,  and  all  rights  not  constitutional,  or 
not  affecting  the  jurisdiction  of  the  subject,  may  be  waived. 
This  conclusion  is  supported  by  a  great  number  of  authorities.4 

§  291.  Presumptions — It  is  an  established  rule  in  criminal 
cases,  as  well  as  in  civil  cases,  that  the  appellate  tribunal  will 
indulge  all  reasonable  presumptions  in  favor  of  the  legality  and 
regularity  of  the  proceedings  of  the  trial  court.5     Where  all  the 


1  Douglass  v .  State,  72  Ind.  385,  cit- 
ing Teal  v.  Spangler,  72  Ind.  380; 
Coble  7'.  Elzroth,  125  Ind.  429;  Grubb 
v.  State,  117  Ind.  277;  Coleman  -'.The 
State,  in  Ind.  563;  Morrison  v.  State, 
76  Ind.  335.  In  Coleman  v.  State, 
supra,  it  was  said:  "  It  is  a  settled  rule 
that  a  person  having  a  knowledge  of 
the  incompetency  or  misconduct  of  a 
juror,  or  of  any  other  matter  not  affect- 
ing the  jurisdiction  of  the  court,  which 
would  vitiate  the  trial,  who,  neverthe- 
less, proceeds  to  a  conclusion  without 
objection,  will  not  thereafter  be  heard  to 
object  that  the  trial  was  vitiated  there- 
by." State  v.  Caulfield,  23  La.  Ann. 
148,  State  v.  Drogmond,  55  Mo.  87; 
Henslie  v.  State,  3  Heisk.  202;  Com- 
monwealth v.  Dedham,  16  Mass.  141. 

2  Clark  v.  State,  4  Ind.  26S;  Duncan 
v.  State,  84  Ind.  204. 

3  Powers  v.  State,  87  Ind.  144;  Hol- 
lings worth  v.  State,  111  Ind.  2S9,  12  X. 
E.  Rep.  490,  citing  Liggett  v.  Firestone, 
102  Ind.  514;  Pratt  v.  Allen,  95  Ind. 
404;  Xorthwestern,  etc.,  Co.  v.  Haze- 
lett,  105  Ind.  217;  Landerwlen  v. 
Wheeler,  106  Ind.  523. 


*  Heath  v.  State,  101  Ind.  512.  See, 
"  Waiver  of  Constitutional  Rights  in 
Criminal  Cases,"  6  Crim.  Law.  Mag. 
182,  auth.  note  1S6;  State  v. Poison,  29  la. 
133;  State  v.  Worden,  46  Conn.  349; 
State  v.  Jarvis,  20  Ore.  437,  23  Pac.  Rep. 
251 ;  State  v.  Leeper,  70  Iowa,  74S,  30  X. 
W.  Rep.  501 ;  App  v.  State,  90  Ind.  73, 
McQueen  v.  State, 82  Ind.  72.  A  strik- 
ing illustration  is  supplied  by  the  cases 
which  hold  that  if  incompetent  evidence 
is  allowed  to  go  to  the  jury  without  ob- 
jection and  it  makes  out  a  case  the  judg- 
ment will  not  be  reversed.  Cross  v. 
People,  47  111.  152,  S.  C.  95  Am.  Rep. 
474;  Graves  v.  State,  121  Ind.  3^7; 
Hickey  v.  State,  23  Ind.  21.  See,  gen- 
erally, Mergentheim   v.   State.  107  Ind. 

S67-  ' 

5  State  7'.  Hanna,  84  Ind.  183;  Buell 
v.  State,  72  Ind.  523;  Parker  v.  State, 
78  Ind.  259;  Folden  7'.  State,  13  Xeb. 
328;  State  7'.  Collins,  33  La.  Ann.  152; 
Bohannon  7'.  State,  14  Texas  App.  271; 
State  v.  Brown,  33  S.  C.  151,  11  S.  E. 
Rep.  641;  People  :•.  Cline,  S3  Cal.  374. 
23  Pac.  Rep.  391;  Duncan  r.  State, 
SS    Ala.    31,    7    So.    Rep.    104;     State 


252  APPELLATE  PROCEDURE. 

instructions  are  not  in  the  record  those  asked  by  the  defendant 
will  be  presumed  to  have  been  proper]}-  refused  because  in- 
cluded in  the  instructions  given.1  Where  the  evidence  is  not 
in  the  record  it  will  be  presumed  that  the  instructions  were 
based  upon  it,  and  that  there  was  no  error,-  but  if  the  instruc- 
tions can  not  be  correct  upon  any  supposable  state  of  the  evi- 
dence this  presumption  will  not  prevail.  It  is  held  that  where 
the  record  shows  the  presence  of  the  accused  at  the  beginning 
of  the  trial  it  will  be  presumed  that  he  continued  in  court  ;3  this 
presumption  would  certainly  prevail  where  it  appeared  that  the 
accused  had  an  opportunity  to  make,  and  did  make,  all  of  the 
motions  that  could  be  of  service  to  him.4  It  will  be  found,  on 
investigation,  that  the  rule  that  the  trial  court  is  presumed  to 
have  done  its  duty  and  conducted  the  proceedings  legally  and 
regularly  is  substantially  the  same  in  criminal  cases  as  it  is 
in  civil  cases.  There  is  no  valid  reason  why  the  rule  should 
be  different,  nor  do  the  decided  cases  warrant  the  conclusion 
that  it  is  different;  on  the  contrary,  the  decisions  very  gener- 
ally refer  to  civil  cases  in  support  of  the  conclusions  asserted. 
The  doctrine  deducible  from  the  decided  cases  is,  it  may  be 
said  in  a  general  way,  that  the  presumption  is,  that  there  was 
no  prejudicial  error,  and  that  error  must  be  shown  affirmatively 
by  the  record,  or  the  presumption  will  prevail.5 

v.  Weaver,  104  N.  C.758,  10  S.  E.  Rep.  v.  Von,  7S   Cal.    x,    20   Pac.    Rep.   35; 

4S6;      United    States    v.   Groesbeck,    4  Territory     v.    Scott.    7    Mont.    407,    17 

Utah,  4.87,  11  Pac.  Rep.  542;  Clarke  v.  Pac.  Rep.  627;  State  v.  Dickerson,  9S 
State,  87  Ala.  71,  6  So.  Rep.  36S;   Lowe  '  N.  C.  70S;    State   v.   Moore,  77  la.  449, 

State,  88    Ala.  8,    7   So.    Rep.    97;  42  N.  W.  Rep.  367;  State  v.  Wyatt,  76 

Lienpo  v.  State,  28  Texas  App.  179,  12  la.  32S,  770,  41    X.  W.  Rep.  307. 

S.  W.  Rep.  58S.  3  People   v.  Sing  Lum,  61    Cal.   538; 

'Johns  v.  State.  104  Ind.  557;  Stew-  State  V.  Collins,  33  La.  Ann.  152;  Bo- 
art  v.  State,  111  Ind.  554;  Gallagher  v.  hannon  v.  State.  14  Texas  App.  271; 
State,  101  Ind.  411;  Holmes  v.  State,  SS  Folden  v.  State,  13  Neb.  32S;  State  v. 
Ind.  145;  Garretl  v.  State,  109  Ind.  527;  Kline,  54  la.  1S3,  6  N.  W.  Rep.  184; 
Grubb  v.  State,  117  Ind.  277;  Hunt  v.  State  v.  Miller,  100  Mo. 606;  Carper?/. 
KeiniM  r  9  S  W.  Rep.  S03;  Carson  v.  State,  27  Ohio  St.  572. 
State,  So  Ga.  170,  5  S.  E.  Rep.  295;  Wil-  4  Avers  v.  State,  SS  Ind.  275. 
lis  v.  State,  27    Neb.  98,  42  N.  W.    Rep.  5  Parker  v.  State,  78  Ind.  259;    Unruh 

v    State.  105  Ind.  117;    Wilson  v.  State, 

1  Butler    v.    State,  97    Ind.   373.  378;  16  Ind.   392;   French   v.   State,   12  Ind. 

Powers  v.   State,   S7    Ind.    144;    People  670;  Griffith  v.  State.  12  Ind.  54S;  Devlo 


APPEALS  IN  CRIMINAL    CASES.  253 

§  292.  Record  must  show  Prejudicial  Error — To  entitle  the  de- 
fendant to  a  reversal  material  error  must  be  shown.  To 
show  this  it  is  essential  that  there  should  be  a  decision,  or  a 
proper  request  for  a  decision  and  a  refusal  to  decide.1  The 
decision  or  ruling  should  be  upon  a  material  question.  Our 
statutory  provisions  forbid  the  reversal  for  technical  or  formal 
errors  or  irregularities.  In  one  place  it  is  enacted  that  the 
court  shall  disregard  formal  errors  or  defects  which  do  not 
prejudice  the  substantial  rights  of  the  defendant.2  The  right 
given  to  the  defendant  to  except  is  confined  to  "a  matter  of 
law  by  which  his  substantial  rights  are  affected. "3  These 
statutory  provisions,  emphatic  as  they  are,  do  little  more  than 
declare  the  general  rule  established  by  the  later  decisions,  al- 
though it  must  be  owned  that  many  of  the  earlier  cases  gave 
little  heed  to  the  provisions  of  the  statute.  But  the  later  cases 
uniformly  enforce  the  statutory  provisions.4  It  is  necessary, 
therefore,  that  the  record  should  affirmatively  show  an  excep- 
tion to  a  ruling  upon  a  matter  of  law  affecting  the  substantial 
rights  of  the  defendant,  and  show,  also,  that  the  ruling  was 
prejudicial  to  him  or  was  probably  prejudicial  to  him.5     The 

v.  State,  4  Ind.  200;   Woolley  v.  State,  446;  Clayton  v.  State,  100  Ind.  201 ;  State 

8  Ind.  502;   Sloan  v.  State,  8  Ind.  312;  v.  Buchler,  103  Mo.  203,  15  N.  W.  Rep. 

State  v.  Frazer,  28  Ind.  196.  331;  Muscoe  v.  Commonwealth,  86  Va. 

1  Keyes  v.  State,  122  Ind.  527;  Cole-  443,  12  S.  E.  Rep.  790.     These  cases,  to 

man  v.  State,  m   Ind.  563;   Waterman  which  many  more  might  be  added,  are 

v.   State,  116   Ind.  51;    Welsh  v.  State,  sufficient  to  show  that  only  substantial 

126  Ind.  71.  errors  duly  saved  can  be  regarded,  for 

8  R.  S.,  §  1 891.  they  illustrate  many  forms  and  phases 

3  R.  S.,  §  1845.  of  the  subject. 

*  Drew  v.  State,  124  Ind.  9;    Quaker         5  We  do  not  mean  to  be  understood 

v.  State,  120  Ind.  92;     Beggs  v.  State,  as  affirming  that  the    record  must  ex- 

122  Ind.  54;     Lefler  v.  State,   122   Ind.  pressly  state  that  the  error  was  preju- 

206;   Kennegar  v.  State,   120  Ind.   176;  dicial,  or  probably  prejudicial.     We  in- 

Cooper  v.  State,  120  Ind.  377;   Epps  v.  tend    to    convey    no    such    impression. 

State,  102   Ind.  539;     Sample  v.  State,  The  prejudicial  character  of  the  error 

104  Ind.  2S9;    Strong  v.  State,  105  Ind.  may  appear  and,   indeed,  almost  inva- 

1;  Brown  v.  State,  105  Ind.  3S5;  Graeter  riably  does  appear,  from  the  character 

V.  State,  105  Ind.  271;  Norton  v.  State,  of  the   ruling   itself  and    the    circum- 

106    Ind.    163;     Henning   v.   State,    106  stances  under  which  it  was  made.     If 

Ind.  3S6;     Heyl  v.  State,  109  Ind.  5S9;  the   record    so    exhibits    the   erroneous 

Wood  v.  State,  92   Ind.  269;   Norris  v.  ruling  as  to  make  it  appear  to  the  ap- 

State,  95  Ind.  73;   Riley  v.  State,  95  Ind.  pellate  tribunal  that  it  probably  preju- 


254  APPELLATE  PROCEDURE. 

general  rule  that  an  exception  is  essential  is,  however,  not  ap- 
plicable to  cases  where  the  indictment  or  information  utterly 
tails  to  charge  a  public  offence,  since,  as  we  have  elsewhere 
.shown,  if  the  indictment  or  information  does  not  charge  a  pub- 
lic offense  it  may  be  assailed  in  the  assignment  of  errors  for 
the  first  time. 

§  203.  Objections  must  be  made  in  the  Trial  Conrt — Objections 
must  be  made  in  the  trial  court  and  the  questions  saved  by  due  and 
opportune  exceptions.  The  groundwork  for  the  appeal  is  or- 
dinarily laid  in  the  trial  court,  for,  as  a  general  rule,  questions 
not  there  made  and  saved  in  an  appropriate  method  will  not  be 
considered  on  appeal.  Questions  as  to  the  jurisdiction  of  the 
subject  and  as  to  the  sufficiency  of  the  indictment  or  informa- 
tion may,  however,  be  made  for  the  first  time  in  the  assignment 
of  errors  on  appeal.1  Objections  must  be  reasonably  specific 
and  certain.2  Exceptions  must  be  duly  taken  to  the  rulings 
upon  which  error  is  assigned,3  and  the  record  must  show  the 
exceptions.4  Where  a  motion  for  new  trial  is  necessary  (as  it 
generally  is)  to  present  questions  for  review,  it  must  assign  the 
proper  causes,0  and  must  be  reasonably  definite  and  certain  in 

diced  the  substantial  rights  of  the  ac-  erty    v.   State,   5   Ind.    453;     Peopli 

cused,  there  is,  in  contemplation  of  law,  Barker,  60  Mich.  277,  State  v.  Meyers, 

an     affirmative     showing    of    available  99  Mo.  107,   12  S.    W.   Rep.  516;     Gra- 

error.  ham  v.  State,  2S  Texas    App.  5S2,  13  S. 

1  Hays  v.  State,  77  Ind.  450;  Pattee  W.  Rep.  1010. 

v.  State.  109  Ind.  545.    See,  "  Questions  *  State  v.  Smith,  S  Ind.  485;  Leverich 

thai    may  be  First  made   on   Appeal,"  v.    State,    ioq    Ind.   J77;     Archibald   v. 

Chapter  XXIII.  State,  [22  Ind.  122;   Powers  v.  State,  87 

2  Graves  v.  State,  121  Ind.  357;  State  Ind.  144;  Gillooly  v.  State,  58  Ind.  182; 
V.  Holcombe, 41  La.  Ann.  1066;  People  Beard  v.  State.  57  Ind.  S;  Collev  V. 
v.  Beaver,  S3 Cal. 419,  23  Pac.  Rep. 321;  Commonwealth  (Kv.),  12  S.  W.  Rep! 
Habel  v.  State,  28  Tex.  App.  588,  13  S.  132;  Steffy  v.  People,  130  111.  98,  22  \. 
W.  Rep.  1001;  Stout  v.  State,  90  Ind.  1 ;  E.  Rep.  861;  W ampler  v.  State,  28 
Sutherlin  v.  State,  108  Ind. 389;  Willey  Texas  App.  t,$2,  13  S.  W.  Rep.  144; 
v.  State,  ^,2.  Ind.  421;  McCorkle  v.  State  v.  Gallo,  18  Ore.  423,  23  Pac.  Rep. 
State.  14  Ind.  39;  Branham  v.  State,  11  264;  Lawrence  v.  Commonwealth,  86 
Iiul.  -;^\  State  v.  Bartlett,  9  Ind.  569;  Va.  573,  10  S.  E.  Rep.  840;  Sisson  v. 
State  V.  Hope,  100  Mo.  347,8  Lawyer's  State, 77  Wis.  273,  45  N.  \V.  Rep.  1130. 
Rep   Anno.  608  and  note.  5  Simons  v.  State, 25  Ind.  331 ;  Schlicht 

3  Mullinix  v.  State,  10  Ind.  5;  Stone  v.  State,  56  Ind.  173.  Motion  must  be 
V.  State,  |2  Ind  )  1  \  State  v.  Downs,  made  as  statute  provides.  Hufford  v. 
7  Ind.  283;    State  v.  Smith,  s  [nd.  $5;  State,  6  Ind.  365. 

O'Hare  v.  People.  40  111.  533;     Dough- 


APPEALS   IN   CRIMINAL    CASES.  255 

its  specifications.1  The  instances  we  have  given  serve  to  show 
that  the  rule  that  questions  must  be  properly  made  in  the  trial 
court,  and  there  duly  saved,  or  an  appeal  will  be  fruitless,  is 
strictly  enforced.  Criminal  cases  have  generally  been  selected 
by  us  in  support  of  our  statements,  although  there  was  little 
necessity  for  confining  our  reference  to  decisions  in  criminal 
cases,  inasmuch  as  the  rules  governing  the  mode  of  saving  and 
presenting  questions  for  appeal  are  substantially  the  same  in 
criminal  cases  as  in  civil  actions.  Upon  almost  every  branch 
of  the  subject  the  rules  of  civil  procedure  are  referred  to  and 
applied,  so  that  the  discussion  of  the  general  rules  of  practice 
applies  as  well  to  the  one  class  of  cases  as  to  the  other. 

§  294.  The  Record — The  defendant  must  bring  to  the  appellate 
tribunal  a  record  exhibiting  the  rulings  of  which  he  complains. 
The  rule  that  recitals  of  facts  in  motions  can  not  be  considered 
as  part  of  the  record  applies  as  well  to  appeals  by  the  accused 
as  to  appeals  by  the  State.  All  rulings  which  require  an  ex- 
amination of,  and  decisions  upon,  questions  of  fact  must  be  ex- 
hibited so  that  they  can  be  understood,  and  this  can  not  be  done 
unless  the  facts  are  properly  brought  into  the  record. 

§  295.  Bill  of  Exceptions — When  necessary — As  we  have  said 
in  speaking  of  the  record  where  the  State  appeals,  the  general 
rule  is  that  all  matters  not  part  of  the  record  proper,  as  affida- 
vits, matters  of  evidence,  collateral  or  special  motions,  and  the 
like,  must  be  brought  into  the  record  by  a  bill  of  exceptions.2 

1  State  v.  Newkirk,  So  Ind.  131;  Stout  Waterman  v.  State,  116  Ind.  51;    Mar- 

v.  State,  78  Ind.  492;    Leyner  v.  State,  shall  v.  State,  123  Ind.   12S;    Adams  v. 

8  Ind.  490;    Benson  v.  State,  119  Ind.  State,  65  Ind.  565;     McClary  v.  State, 

4S8;   Stout  v.  State,  90  Ind.  1;   Stater'.  75  Ind.  260;    Garber  v.  State,  94  Ind. 

Riggs,  92   Ind.  336;    State   v.   Lindley,  219;  Rauck  v.  State,  no  Ind.  3S4;   Peo- 

9S  Ind.  4S;   Sutherlin  v.  State,  10S  Ind.  pie   v.   Noonan,  60  Hun.  578,  14  N.  Y. 

389;  Nutter  v.  State,  9  Ind.  1 7S;  Cheek  Supp.    519;     People    v.    McKenna,   58 

v.  State,  37  Ind.   533.     See,   generally,  Hun.  609;  Commonwealth   v.   Meserve 

Jones    v.   State,    n    Ind.   357;     Cox   v.  (Mass.),  27  N.  E.  Rep.  997.     Thesecases 

State,  49  Ind.  56S;   Farley  v.  State,  127  exhibit  many  different  phases  in  which 

Ind.  419;     State  v.  Kern,  127   Ind.  465;  the  general  subject  has  been  considered. 

Nichols  v.  State,  127  Ind.  406;   Drew;'.  2  Leverich    v.    State,     105    Ind.    277; 

State,  124  Ind.  9;  Coleman  v.  State,  in  Kleepies  v.  State,  106  Ind.  3S3;     Lock- 

Ind.  563;  Grubb  v.  State,   117  Ind.  277;  hart  v.  State,  92   Ind.  452;     Shircliff  v. 


256 


APPELLATE    PROCEDURE. 


The  bill  must  be  filed  within  the  time  limited;1  the  time  can 
not  be  extended.2  Facts  alleged  as  constituting  misconduct  on 
the  part  of  counsel  or  jurors  must  be  embodied  in  a  bill  of  ex- 
ceptions,  and  affidavits  referred  to  in  a  motion  are  not  part  of 
the  record  unless  contained  in  the  bill.3  Where  all  the  evi- 
dence is  necessary  to  present  the  questions  of  which  a  review- 
is  sought,  all  the  evidence  must  be  brought  into  the  record  by 
a  bill  of  exceptions  ;  if  it  appears  that  part  of  the  evidence  is 
omitted,  the  questions  will  not  be  decided  although  the  bill  re- 
cites that  it  contains  all  the  evidence.4  But  we  do  not  deem  it 
necessary  to  go  into  the  authorities  in  detail  ;  it  is  enough  for 
our  present  purpose  to  declare  that  a  bill  of  exceptions  is  as 
essential  to  bring  into  the  record  extrinsic  matters  in  criminal 
cases  as  it  is  in  civil  cases,  and  to  refer  to  another  chapter 
where  the  subject  of  bills  of  exceptions  is  fully  considered. 


State.  96  Ind.  369;  Seibert  v.  State,  95 
Ind.  471;  Shular  v.  State,  105  Ind.  2S9; 
Powers  v.  State,  S7  Ind.  144;  State  v. 
Cooper,  103  Ind.  75;  Compton  v.  State, 
89  Ind.  338;  Pence  v.  State,  no  Ind. 95; 
Taulbv  v.  State,  3S  Ind.  437;  Kennedy 
v.  State.  37  Ind.  355;  Grandolpho  v. 
State,  33  Ind.  439;  Lor.g  v.  State,  40 
Ind.  5S2;  Harman  v.  State, 22  Ind. 331; 
Beard  v.  State,  54  Ind.  413;  Mosher  v. 
State,  14  Ind.  261;  Wreidl  V.  State,  48 
I  ml.  579.  Where  evidence  is  objected 
to  the  bill  must  show  the  specific  objec- 
tions. State  v.  Wilson,  52  Ind.  166. 
A  motion  for  a  new  trial  is  part  of  the 
rd  proper,  hut  extrinsic  facts  con- 
stituting the  causes  must  be  exhibited 
in  the  hill.  Bishop  v.  Welch,  54  Ind. 
527 

1  Tierce  v.  State.  75  Ind.  199;  Colee 
-  State,  75  Ind.  5]  1  ;  Bruce  V.  State, 87 
Ind.  450;  Calvert  v.  State,  91  Ind.  473; 
Hunter  v.  State,  mi  Ind.  406;  SherclitV 
V.  State,  96  Ind.  369;  Marshall  v.  State. 
u^  Ind.  12S,  23  N.  E.  Rep.  1 141. 

2  Mar-hall  v.  State.  123  Ind.  u\ 
23    V   E.    Rep.    1141;     Hartley  r.  State. 


111  Ind.  358.  In  the  case  last  cited 
it  was  held  that  the  time  could  not 
be  extended  by  agreement  It  was 
said,  "The  rule  to  be  observed  in 
making  out  and  filing  bills  of  excep- 
tions in  criminal  causes  is  less  elastic, 
and  has  been  and  still  is  not  so  liberal 
as  that  prescribed  in  civil  cases."  But 
time  may  be  given  when  final  judgment 
is  rendered.     Barnaby  v.  State,  106  Ind. 

539- 

3  Meredith  v.  State,  122  Ind.  514; 
Choen  v.  State,  85  Ind.  209. 

4  Endsley  v.  State,  76  Ind.  467.  The 
opinion  cites  Morrow  v.  State,  4S  Ind. 
432;  Sidener  v.  Davis,  69  Ind.  336; 
Kimball  v.  Loomis,  62  Ind.  201;  Au- 
rora, etc.,  Co.  v.  Johnson.  46  Ind.  315; 
Columbus,  etc.,  Co.  v.  Griffin,  45  Ind. 
369;  State  :  .  President,  etc..  44  Ind. 
350;  Griffin  v.  Ransdell,  71  Ind.  440. 
The  case  of  Endsley  V,  State,  supra,  as 
well  as  many  other-,  shows  that  the 
rule  is  ordinarily  and  generally  the 
same  in  criminal  cases  as  in  civil  ac- 
tions. 


APPEALS  IN  CRIMINAL    CASES.  257 

§  296.  The  Bill  of  Exceptions— M«atters  of  Practice— The  right 
to  a  bill  of  exceptions  is  given  by  statute,  and,  as  is  true  in 
all  instances  where  a  statutory  right  is  sought  to  be  made  avail- 
able, there  must  be  a  compliance  with  the  material  provisions 
of  the  statute.1  The  statute  requires  the  bill  to  be  presented  at 
the  time  of  the  trial,  or  within  such  time  thereafter  as  the  court 
may  allow.2  The  exceptions,  however,  must,  as  the  statute 
provides,  be  "  taken  at  the  time  of  the  trial."  Leave  to  file  the 
bill  must  be  obtained  concurrently  with  the  final  judgment  or  at 
some  earlier  stage  of  the  proceedings.3  The  statements  of  the 
bill  can  not  be  averred  against  nor  aided  by  extrinsic  matters, 
although  errors  may  be  corrected  in  the  trial  court,  so  that  it  is 
essential  that  it  should  be  full  and  correct.4 

§  297.  Appeal  does  not  vacate  the  Judgment — An  appeal  by  the 
defendant  does  not  vacate  the  judgment  of  the  trial  court,  nor 
does  it  operate  as  a  stay  of  proceedings  in  cases  where  the  pun- 
ishment is  imprisonment,  but  a  judgment  for  fine  and  costs  may 
be  stayed.5  The  statute  does  not  in  terms  provide  what  course 
shall  be  pursued  in  securing  a  stay  where  there  is  a  judgment 
for  fine  and  costs,  but  a  general  power  to  order  a  stay  is 
granted,  and  the  grant  of  this  principal  power  carries  the  inci- 
dental and  subsidiary  powers  essential  to  effectuate  the 
principal  power,  so  that  the  courts  may  resort  to  the  ordinary 
methods  of  procedure.  It  seems  to  us  that  there  can  be  no 
doubt  of  the  power  to  require  a  bond  to  secure  the  fine  and 
costs,  and  if  such  power  exists,  a  bond  given  for  the  purpose 

'Freeman  v.  People,  4  Denio,  9,  47  same    in    criminal     cases    as    in    civil 

Am.    Dec.   216,   and    note;    3    Whart.  cases,  so  that  the  discussion  of  the  sub- 

Crim.  Law,  §  3050;    1    Bishop's   Crim.  ject  in  a  subsequent  chapter  is  relevant 

Law,  §  S40.  to  the  signing  and  filing  of  bills  of  ex- 

2  R.  S.,  §  1S47.  ceptions  in  criminal  cases. 

3  Calvert  v.  State,  91  Ind.  473;  Hunter  4  People  v.  Brennan,  79  Mich.  362, 
v.  State,  101  Ind.  406;  Barnaby  v.  44  N.  W.  Rep.  618;  State  v.  Atkinson, 
State,  106  Ind.  539;  Pence  v.  State,  no  33  S.  C.  100  n  S.  E.  Rep.  693.  See 
Ind.  95;  Hunter  v.  State,  102  Ind.  428;  Dolan  v.  State,  122  Ind.  141,  23  N.  E. 
Heath   v.  State,   101   Ind.  512;  Bartley  Rep.  761. 

v.  State,   in   Ind.  358,  12  N.  E.  Rep.  6  R.  S.,  §  188S.     The  respite  in  capital 

503;     Marshall  v.  State,  123    Ind.   12S,  cases  must  be  granted  by  the  Governor, 

23   N.  E.  Rep.  1 141.     The   rules   gov-  as  it  involves  the  exercise  of  executive 

erning     this     subject     are     much    the  power.     Butler  v.  State,  97  Ind.  378. 

17 


258  APPELLATE    PROCEDURE. 

of  securing  a  stay  is  valid  and  effective.1  The  judgment  may- 
be reversed  in  whole  or  in  part,  or  it  may  be  modified  so  as  to 
secure  a  just  disposition  of  the  rights  of  the  parties.2 

§  298.  Effect  of  an  Appeal  by  the  State — The  effect  of  an  appeal 
by  the  State  is  restricted  and  limited  by  statute,  as  well  as  by  the 
constitutional  provision  forbidding  a  second  jeopardy.  Where, 
however,  there  has  been  no  jeopardy,  as,  for  instance,  where  an 
indictment  is  quashed,  the  constitutional  provision  is  not  oper- 
ative, but  it  is  where  there  has  been  a  trial,  no  matter  how 
erroneous  the  proceedings  may  have  been.  The  appeal  of  the 
State  neither  vacates  nor  stays  the  judgment  in  favor  of  the  ac- 
cused. The  object  of  the  judgment  pronounced  by  the  appel- 
late tribunal,  as  we  have  elsewhere  said,  is  to  secure  an  au- 
thoritative exposition  of  the  law  that  will  bind  all  inferior  tribu- 
nals, and  not  to  secure  a  judgment  upon  the  guilt  or  innocence 
of  the  accused  in  a  particular  case.3  The  acquittal  upon  trial 
ends  the  right  to  prosecute,  except,  perhaps,  where  the  acquit- 
tal was  procured  by  such  a  fraud  as  rendered  the  proceedings 
void.4 

1  The    bond    may,    as    we    think,    be  to  supply  an  omitted  case.     R.  S.  iSSi, 

given  cither  in  the  Supreme  Court  or  §1900. 

in  the  trial  court.     The  power  to  grant  2  R.  S.  1881,  §  1S92;  Kennedy  v.  State, 

an  appeal  implies  the  power  to  prescribe  62  Ind.  136.     The  general  principle  that 

the  terms   of  the   appeal,  provided,   of  superior    appellate    tribunals    may    so 

course,  the  terms  are  such  as  the  gen-  mould  their  judgments"  as  to  secure  jus- 

-eral  principles  of  law  authorize  or  the  tice  is  discussed  in  the  chapter  on  ap- 

statute  provides.     The  practice  of  tak-  pellate  jurisdiction,  and  in  the  chapter 

in  j  bond  below  has  been  so  long  con-  wherein  the  effect  of  a  judgment  on  ap- 

tinued  that  it  may  well  be  considered  peal  is  considered.     See  ante,  Chapter 

as   established,  even  if  there  were  no  II,  and  post,  Chapter  XXVIII. 

principle  fully  sustaining  it.     Moore's  3  R.  S.  1S81,  §  1846;  State  v.  Gran- 

Crim.  Law,  §  467;  Gillett's  Crim.  Law,  ville,  45  Ohio  St.  264,  12  N.  E.  Rep.  803. 

§  1008.     The  civil  code  may  be  invoked  *  Shideler  v.  State  (Ind.),  28  N.  E. 

Rep.  537- 


CHAPTER   XVI. 


THE    ASSIGNMENT    OF    ERRORS. 


§  299.   The  office  and  form  of  the  as-     §  321. 
signment  of  errors. 

300.  The  assignment  of  errors  is  the         322. 

complaint  of  the  appellee.  323. 

301.  The  assignment  of  errors   pre- 

sents questions  of  law.  324. 

302.  Leave  to    amend  may   precede         325. 

the  assignment  of  errors. 

303.  Assignment  of  errors  essential         326. 

to  complete  jurisdiction. 

304.  Relief  where   failure    to  assign         327. 

errors  is   caused   by   accident 

or  fraud.  »  328. 

305.  Preliminary  steps  may  precede 

the  assignment  of  error  in  ex-         329. 
ceptional  cases.  330. 

306.  Specifications  of  error. 

307.  Statutory  provisions.  331. 

308.  Concerning    the    rule    that    the 

assignment  shall  be  specific. 

309.  Each  specification  must  be  com- 

plete in  itself.  332. 

310.  Appeals  from  the  Marion    Su-         333. 

perior  Court.  334. 

311.  By    whom    errors    must    be    as-         335. 

signed.  336. 

312.  Intervenors. 

313.  Incidental  issues.  337. 

314.  Only  injured  parties  can  assign         338. 

error.  339. 

315.  Parties  privies  may  assign  error.  340. 

316.  The  assignment  can  not  contra- 

dict the  record.  341, 

317.  A  favorable  ruling  can  not  be 

assigned  as  error.  342. 

31S.  Joint  assignments.  343 

319.  Exception  to  the  general  rule. 

320.  Curing    defects    in    the    assign-         344 

ment.  345 


Correcting    the    assignment    of 
errors  as  to  parties. 

Naming  parties. 

Exceptions  to  the  rule  requiring 
names  of  parties. 

Groundwork  of  the  assignment. 

Distinction  between  resembling 

classes  of  cases. 
Specifications  of  error  defective 
because  too  general. 

Meaning  of  the  rule  requiring 
specific  assignments. 

Errors  respecting  jurisdiction 
of  the  person. 

Defective  trial  court  process. 

Application  to  trial  court  where 
process  or  service  is  defective. 

The  difference  between  cases 
where  there  is  no  jurisdiction 
and  cases  where  the  notice  is 
defective. 

Cases  where  there  is  no  service. 

Writs  running  beyond  the  term. 

Judgments  by  default. 

Failure  to  obey  a  rule  to  plead. 

Rulings  on  pleadings — Gener- 
ally. 

Rulings  on  demurrers. 

Interrogatories  to  parties. 

Habeas  corpus  cases. 

Identifying  the  ruling  com- 
plained of. 

Objections  to  the  mode  of  im- 
paneling the  jury. 

Rulings  on  verdicts. 

Specifications  in  cases  of  rulings 
on  verdicts. 

Rulings  on  judgments. 

Mode  of  objecting  to  judgments. 


(259) 


260 


APPELLATE  PROCEDURE. 


§  346.    Original    objections    to     judg-     §  35°- 
merits. 

347.  Causes  for  a  new  trial  not  as-         351. 

signable  as  error. 

348.  What  matters  arc  not  assignable  352. 

as  reasons  for  a  new  trial. 

349.  What  should  be  made  independ-        353. 

ent  specifications  of  error. 


Independent    specifications  — 

When  proper. 
Specifications  of  the  motion  for 

a  new  trial. 
Trial   where   issues   of  law    are 

undecided. 
Amendment  of  the  assignment 

of  errors. 


§  299.   The  Office  and  Form  of  the  Assignment  of  Errors— The 

office  of  the  assignment  of  errors  is  to  specifically  and  definitely 
present  for  review  by  the  appellate  tribunal  the  rulings  of  the 
trial  court  which  the  appealing  party  deems  erroneous.  Each 
specification  should  be  complete  in  itself,  and  so  framed  as  to 
clearly  present  the  question  of  law  upon  which  a  decision  is 
sought.  One  point  only,  or,  perhaps,  more  accurately,  one 
ruling,  should  be  embraced  in  each  specification.1  It  is  not 
meant  by  this,  however,  that  every  minor  proposition  should  be 
specifically  assigned,  for  a  prolix  assignment  of  errors  is  neither 
desirable  nor  proper.2  Although  a  single  specification  of  error3 
should  cover  only  one  ruling,  yet  that  one  ruling  may  embrace 
many  subsidiary  questions,  as,  for  instance,  a  specification  that 
the  court  erred  in  overruling  a  demurrer  to  a  complaint  may 
present  many  subsidiary  questions  of  law,  or,  a  specification 
that  the  court  erred  in  overruling  a  motion  for  a  new  trial  may 


1  Kelley  v.  Bennett,  132  Pa.  218,  7 
Lawyers'  Rep.  Anno.  120;  Good  Intent, 
etc.,  Co.  v.  Hartzell,  22  Pa.  St.  277; 
Bull's  Appeal,  24  Pa.  St.  2S6;  Mc- 
Cormack  v.  Philips  (Dak.),  34  N.  W. 
Rep.  39;  Hughes  v .  Galveston,  etc.,  Co., 
>•-  Tex.  595,  4  S.  W.  Rep.  219. 

1  In  the  case  of  Philips,  etc.,  Co. 
v.  Seymour,  91  U.  S.  646,  the  Su- 
pn  1  ne  Court  of  the  United  States  gave 
counsel  a  stinging  rebuke  for  unneces- 
sarily multiplying  the  specifications  of 
errors,  saying,  among  other  things: 
"  This  practice  of  unlimited  assign- 
ments is  a  perversion  of  the  rule,  de- 
feating all  its  purposes,  bewildering  the 
counsel  of  the  other  side,  and  leaving 


for  the  court  to  gather  from  a  brief,  often 
as  prolix  as  the  assignments  of  error, 
which  of  the  latter  are  really  relied  on." 
See,  also,  Brewster  v.  Baxter,  2  Wash. 
Ty.  135- 

3  The  assignment  of  errors  under  our 
practice  is  a  pleading  composed  of  one 
specification,  or  of  several  specifications, 
and  it  is,  therefore,  conducive  to  per- 
spicuity as  well  as  to  accuracy,  to  speak 
of  the  points  stated  as  specifications 
rather  than  as  assignments.  In  strict 
accuracy,  an  assignment  of  error  is  an 
entire  pleading,  although  composed  of 
parts  or  branches,  and  these  parts  or 
branches  are  specifications. 


THE  ASSIGNMENT  OF  ERRORS.  261 

bring  forward  for  review  many  and  diverse  rulings  concerning 
the  conduct  of  the  trial. 

§  300  The  Assignment  of  Errors  is  the  Complaint  of  the  Ap- 
pellant— The  assignment  of  errors  is,  in  effect,  the  complaint  in 
the  appellate  tribunal,  and  hence  it  is  necessary  that  it  should 
be  so  framed  that  issue  can  be  joined  upon  it.  It  is  the  plead- 
ing which  calls  into  exercise  the  appellate  power,  and  without 
it  that  power  is  not  invoked.  By  it  the  case  is  brought  into  the 
appellate  court,  and  upon  it  is  formed  the  issue,  or  issues,  on 
which  judgment  is  given  in  all  cases  except  those  in  which  a 
question  outside  of  the  record  is  presented  in  an  appropriate 
mode.  In  all  cases  where  a  review  of  previously  decided 
questions  is  sought,  errors  must  be  properly  assigned.1 

§301.   The  Assignment  of  Errors  presents  Questions  of  Law — 

The  assignment  of  errors,  with  few  exceptions,  concedes  all 
disputed  questions  of  fact  and  presents  for  review  only  ques- 
tions of  law.  In  a  just  sense  the  assignment  does  not  and  can 
not  in  any  case  controvert  the  record,  inasmuch  as  it  assumes 
the  verity  of  the  record  and  implies  that  error  is  apparent 
thereon.2  Even  in  cases  where  the  party  challenges  the  verdict 
of  a  jury  upon  the  evidence,  or  assails  the  finding  of  the  trial 
court  upon  a  question  of  fact,  he  does  not  contradict  the  record, 
but,  on  the  contrary,  he  assumes  that  the  record  states  the  facts 
correctlv  and  alleges  that,  on  the  facts  as  the  record  exhibits 
them,  the  verdict  or  finding  is  erroneous.  While  it  is  true  that 
under  our  system  an  appellate  court  may  be  required  to  review 
a  decision  upon  a  question  of  fact  it  is,  nevertheless,  true  that 

1  Hollingsworth  v.  State,  8  Ind.  257;  Huttsi'.  Hutts,  62  Ind.  214.     An  assign- 

Riley  v.  Murray,  8  Ind.  354;  Hender-  ment  of  errors  may  be  required  by  a 

son  v.  Halliday,  10  Ind.  24;   Deputy  v.  rule  of  court.     Collins  v.  City  of  Se- 

Hill,  S5  Ind.  75;   Williams  V.  Riley,  SS  attle,    2    Wash.    Ty.    354;     Parker    v. 

Ind.  290;  Thoma  v.  State,  S6  Ind.  1S2;  Dacres,  2  Wash.  Ty.  440.     When  thus 

Hays  v.  Johns,  42  Ind.  505;   Wiggs  v.  required,  no  question  can  be  presented 

Koontz,  43  Ind.  430;  Pahmeyer  t'.Grov-  without  it.     Brown  v.  Hazard,  2  Wash, 

erman,  60  Ind.  7;  Elder  v.  Sidwell,  66  Ty.  464. 

Ind.  316;  Pruitt  v.  Edinburg,  etc.,  Co.,  2  Fabyan   v.  Russell,  39  N.  H.  399; 

71  Ind.  244;    Snyder  v.  State,  124  Ind.  Claggett  v.  Sims,  31  N.  H.  22. 
335;    Calvert    v.    State,   91     Ind.   473; 


APPELLATE  PROCEDURE 

it  reviews  the  decision  upon  the  theory  that  the  facts  are  prop- 
erly and  correctly  stated  in  the  record.  If  it  is  desired  to 
make  an  issue  of  fact  outside  of  the  record,  or  as  against  the 
record,  it  must  be  done  by  some  other  pleading  than  the  assign- 
ment of  errors.  It  is  seldom  that  the  appellant  in  the  first  in- 
stance requires  any  other  original  pleading  on  appeal  than  the 
assignment  of  errors  ;  it  is,  indeed,  almost  impossible  to  con- 
ceive a  case  where  any  other  pleading  is  required  in  the  first 
instance,  except  where  some  defect  in  the  record  requires 
amendment. 

§  302.    Leave  to  amend  may  precede  the  Assignment  of  Errors — 

It  is  within  the  power  of  the  court  to  grant  an  appellant  leave 
to  secure  an  amendment  of  the  record  before  filing  an  assign- 
ment of  errors,  for  it  seems  clear  that  a  party  can  not  be  right- 
fully compelled  to  assign  errors  upon  an  imperfect  record,  but 
ordinarily  the  assignment  of  errors  must  precede  a  petition  to 
amend.  If,  therefore,  an  appellant  believes  the  record  to  be 
radically  imperfect  he  can,  upon  the  proper  petition  and  notice 
seasonably  filed  and  issued,  secure  an  amendment  before 
assigning  errors.'  He  must,  however,  file  such  a  transcript  as 
he  can  obtain,  since  it  is  incumbent  upon  him  to  get  the  case 
into  the  appellate  tribunal  if  it  is  in  his  power  to  do  so.  As  it 
is  his  duty  to  present  a  complete  and  perfect  record,  he  must 
make  a  clear  showing  to  entitle  him  to  a  writ  commanding  the 
correction  of  the  record  and  he  should  show  that  the  record 
can  not  be  corrected  without  the  assistance  of  the  appellate 
tribunal,  nor  can  he  obtain  leave  to  have  the  record  amended 
before  assigning  error  without  clearly  showing  that  his  case  is 
a  well  defined  and  clearly  marked  exception  to  the  settled  gen- 
eral rule.     It  is,  therefore,  safest  to  first  assign  errors. 

§  303.   Assignment  of  Errors  essential  to  Complete  Jurisdiction 

— As  the  complaint  of  a  plaintiff  is    essential    to    confer    com- 

1  It    is,    however,    to  be   remembered  the  record  exhibits  it.      If  an  omission 

changes    in   the    record   as    it    \v;is  is  to  lie  supplied,  or    a  defect  remedied, 

made  in    the   trial  court  can  not  be  or  and  the  omission  or  defect  occurred  in 

dered  on   appeal;   all   that  can   be  done  the  trial   court,  the   application   to  cor- 

or  appeal  is  to  make  the  transcript  cor-  rect  or  amend  must  there  be  made. 
rectly  show  what  was    done   below 


THE  ASSIGNMENT  OF   ERRORS. 

plete  jurisdiction  upon  the  trial  court,  and  as  the  assignment 
of  errors  is  the  appellant's  complaint  on  appeal  it  must  be  true, 
as  a  general  rule, — although  that  rule  is  not  without  excep- 
tions,— that  there  is  no  jurisdiction  of  the  case  until  the  assign- 
ment of  errors  is  properly  filed.  It  is,  therefore,  correctly 
held  that  it  is  indispensably  necessary  to  file  the  assignment  of 
errors  within  the  time  designated  by  the  statute  for  taking  an 
appeal.1  The  filing  of  the  transcript  alone  does  not  give  the 
appellate  tribunal  full  jurisdiction,  nor  is  there  a  perfected  ap- 
peal until  the  assignment  of  errors  is  filed. 

§  304.  Relief  where  failure  to  assign  errors  is  caused  by  Accident 
or  Fraud — It  is  doubtless  within  the  general  power  of  an  appel- 
late tribunal  to  relieve  a  party  who  has  been  prevented  bv  fraud, 
or  by  accident,  from  filing  the  assignment  of  errors  within  the 
time  limited  by  law,  but  in  the  absence  of  a  satisfactory  show- 
ing of  accident  or  fraud  no  such  relief  will  be  awarded.2  If 
the  failure  to  file  the  assignment  of  errors  within  the  time  lim- 
ited by  law  is  attributable  to  the  fault  or  negligence  of  the  ap- 
pellant, or  his  counsel,  the  court  can  not  permit  the  assignment 
to  be  filed  after  the  expiration  of  the  time  designated  by  law. 
The  requirement  of  the  statute  is  rightlv  construed  to  be  im- 
perative and  it  is  only  where  there  is  an  accident,  or  a  fraud, 
such  as  is  cognizable  under  legal  or  equitable  principles,  that 

1  Bacon'r.Withrow,  1 10  Ind.94;  Law-  upon  the  general  questions  must  be 
rence  f.  Wood,  122  Ind.  452,  24  N.  E.  deemed  erroneous.  In  Johnson  v.  Steph- 
Rep.  159;  Smvthe  v .  Boswell,  117  Ind.  enson.  104  Ind.  368,  the  question  was 
365;  Hollingsworth  v.  State,  8  Ind.  not  considered  or  decided. 
257:  Henderson  v.  Halliday.  10  Ind  24;  2  Smvthe  7'.  Boswell,  117  Ind.  365. 
Riley  i>.  Murray,  8  Ind.  354;  Breeding  The  assignment  of  errors  being  a  juris- 
v.  Shinn,  11  Ind.  547;  State  v.  Delano,  dictional  step,  it  must  be  taken  within 
34  Ind.  52;  Crawford  v.  Kansas  City,  the  time  prescribed  by  law  for  taking 
etc..  Co.,  45  Kan.  474.  25  Pac.  Rep.  865.  the  appeal.  Ante,  §  12S.  It  necessarily 
As  we  have  already  shown  the  appeal  results  from  this  settled  doctrine  that  a 
must  be  fully  perfected  within  the  time  party  who  asks  leave  to  file  the  assign- 
designated  by  law.  Ante.  §  12S.  The  ment  of  errors  after  the  time  limited  by 
question  in  Harshman  v.  Armstrong,  law  has  expired  must  show  either  fraud 
43  Ind.  126,  was  as  to  the  notice,  not  as  or  accident  to  which  no  fault  or  wrong 
to  the  filing  of  the  assignment  of  errors,  of  bis  contributed. 
Many   of  the    statements  in   that  case 


264  APPELLATE  PROCEDURE. 

there  can  rightfully  be  any  relaxation  of  the  statutory  require- 
ment. 

§  305.  Preliminary  steps  may  precede  the  Assignment  of  Errors 
in  Exceptional  Cases — It  has  been  held,  and  with  reason,  that  a 
case  may  be  in  the  appellate  tribunal  for  the  purpose  of  obtain- 
ing process,  although  no  assignment  of  errors  has  been  tiled.1 
The  principle  upon  which  this  ruling  rests  is  substantially  the 
same  as  that  which  authorizes  the  conclusion  that  a  case  may 
be  considered  in  court  for  the  purpose  of  securing  the  correc- 
tion of  the  record,  although  no  assignment  of  errors  has  been 
tiled.  These  exceptions  do  not,  however,  overthrow  the  gen- 
eral rule  ;  they  simply  prove  or  test  it.  The  true  rule  is,  as  we 
believe,  that  there  is  no  appeal  which  will  authorize  a  judgment 
of  review  unless  the  assignment  of  errors  is  filed  within  the 
time  limited  by  law,  although  there  may  be  exceptional  instances 
in  which  a  case  may  be  before  the  court  for  the  purpose  of  dis- 
posing of  preliminary  or  intermediate  questions.2  But  even  as 
to  preliminary  matters  the  general  rule  that  the  assignment  must 
be  made  in  order  to  give  jurisdiction,  will  prevail  unless  the 
case  is  so  extraordinary  as  to  constitute  an  exception.  Even 
in  cases  where  preliminary  proceedings  are  allowable  the  as- 
signment of  errors  must  be  filed  within  the  time  prescribed,  for 
the  appeal  must  be  fully  perfected  within  that  time. 

§  306.  Specifications  of  Error — The  specifications  of  error  must 
cover  all  the  rulings  which  the  appellant  desires  reviewed.  He 
can  not,  as  we  have  seen,  make  any  error  available  that  is  not 
well  assigned,  and  errors  are  not  well  assigned  unless  they  present 
to  the  appellate  tribunal  all  the  rulings  upon  which  the  appel- 
lant seeks  the  judgment  of  the  court  to  which  he  prosecutes  his 

1  Price  v.  Baker,  |i  [nd.  570.  filed,  still  it  is  stating  the  rule  too 
'Judge  Buskirk  says:  "Until  such  broadly  to  say  that  there  is  no  juris- 
an  assignment  is  made,  a  case  is  not  in  diction  "for  any  purpose  whatever." 
the  Supreme  Court  for  any  purpose  Bacon  v.  Withrow,  tio  Ind.  94.  The 
whatever.-'  Buskirk's  Pr.  m.  But  it  author  from  whom  we  have  quoted  un- 
is  evidenl  that  this  statement  requires  doubtedly  states  the  general  rule,  but 
some  qualification,  for  although  the  he  states  it  too  broadlj',  since  his  state- 
general  rule  is  that  there  is  no  juris-  ment  excludes  all  possible  exceptions, 
diction  until  the  assignment  of  errors  is 


THE   ASSIGNMENT  OF  ERRORS.  265 

appeal.1  If,  for  instance,  a  case  commenced  in  one  court  is 
carried  by  a  change  of  venue  to  another  court,  and  the  assign- 
ment of  errors  is  limited  to  the  judgment  and  proceedings  of  the 
court  in  which  the  action  was  brought,  it  will  not  bring  in  re- 
view rulings  in  the  court  into  which  it  went  upon  change  of 
venue.2 

§  307.  Statutory  Provisions — The  statute  provides  that  no 
pleadings  shall  be  required  on  appeal  except  "  a  specific  assign- 
ment of  errors,"3  but  it  is  obvious  that  this  provision  can  not  be 
literally  construed,  for  if  the  language  were  taken  literally  there 
could,  in  no  event,  be  more  than  one  pleading  on  appeal.  It 
is  clear  that  no  such  construction  can  be  justly  given  the 
statute,  for  it  would,  as  every  one  knows,  be  impossible  to  con- 
duct the  ordinary  business  of  an  appellate  court  if  there  could 
be  no  motions,  petitions,  pleas,  or  the  like.  The  statutory  pro- 
vision can  not,  however,  be  construed  as  a  distinct  enactment 
standing  apart  from  all  others  without  a  violation  of  the  settled 
rule  that  a  statutory  provision  must  be  considered  in  connection 
with  the  written  and  unwritten  laws  of  the  country.4  Nor  can 
it  be  so  construed  without  doing  violence  to  the  familiar  rule 
that  the  legislative  intention  must  be  sought  and  enforced. 

1  Winbrenner  v.  Brunswick,  etc.,  Co.  Hartman,  124  Ind.  1S6,  26  N.  E.  Rep. 
(Iowa),  47  N.  W.  Rep.  1089;  First  Nat.     91;    post,  §  340. 

Bank  v.  Wright  (Iowa),  4S  N.  W.  Rep.  3  R.  S.  1SS1,  §  655. 

91;     Waxel    v.   Haruman,  35  111.  App.  *  Humphries  v.  Davis,   100  Ind.  274; 

571;     Reagan    v.    Copeland,  78   Texas,  Robinson  v.  Rippey,  11 1  Ind.  112;   Chi- 

551,    14    S.    W.    Rep.    1031;     Millers,  cago,  etc.,  Co.  v.  Summers,  113  Ind.  10; 

Wade,  S7  Cal.  410,  25  Pac.  Rep.  487.  Morrison  v.  Jacoby,  114  Ind.  S4;   Brad- 

2  Indiana,  etc.,  Co.  v.  McBroom,  9S  lev  :•.  Thixton,  117  Ind.  255;  Rush- 
Ind.  167;  State  v.  Terre  Haute,  etc.,  ville  Gas  Co.  v.  City  of  Rushville, 
Co.,  64  Ind.  297;  Martin  v.  Fox,  40  121  Ind.  206.  Upon  this  principle  the 
Mo.  App.  664;  St.  Louis,  etc.,  Co.  v.  logical  and  reasonable  conclusion  is 
McLain  (Tex.),  15  S.  W.  Rep.  7S9;  that  when  the  legislature  creates  an 
Honeycutt  v.  St.  Louis,  etc.,  Co.,  40  appellate  tribunal  it  invests  that  tribunal, 
Mo.  App.  674;  Greer  v.  Greer,  5S  Hun.  except  as  otherwise  expressly  or  im- 
251,  12  X.  Y.  Sup.  77S.  These  decisions  pliedly  provided,  with  all  the  incidental 
show  that  the  specific  error  relied  on  powers  of  such  a  tribunal,  whether  such 
must  be  clearly  designated.  See,  also,  powers  are  prescribed  by  the  written  or 
Heiney  v.  Garretson.  1  Ind.  App.   54S,  bv  the  unwritten  law. 

27  N.  E.   Rep.  989;     Ringgenberger  v. 


APPELLATE   PROCEDURE. 


.^  308.  Concerning  the  Rule  that  the  Assignment  shall  be  Specific 
— The  statutory  requirement  that  the  assignment  of  errors  shall 
be  specific  has  been  enforced  in  a  great  number  of  cases.1  The 
rule,  even  in  the  absence  of  a  statutory  provision  requiring  it,  is 
that  errors  shall  be  specifically  assigned.-  To  give  effective  and 
practical  force  to  the  rule  requiring  specific  assignments  of  the 
errors  relied  on,  it  is  necessary  that  there  should  be  distinct 
specifications,  each  complete  in  itself,  and  each,  as  we  have 
seen,  presenting  for  review  a  single  ruling.  This  is  essentially 
what  is  required  by  one  of  the  rules  of  the  Supreme  Court,3  and 
a  failure  to  com  pi  v  with  the  provisions  of  that  rule  will  justify 
the  court  in  disregarding  the  assignment.1 

.^  309.  Each  Specification  must  be  Complete  in  itself— An  assign- 
ment of  errors  is,   as  has  been  elsewhere  said,  composed  of 


1  Isler  v.  Bland,  117  Ind.  4.57;  Dur- 
ham v.  Craig,  79  Ind.  117;  Blizzard  v. 
Riley,  S3  Ind.  300;  Bowlus  v.  Brier.  S7 
Ind.  391;  Pennsylvania  Co.  v.  Gallen- 
tine,  77  Ind.  322;  Daunhauer v.  Hilton, 
S2  Ind.  531;  Peters  v.  Banta,  120  Ind. 
410;  Benson  v.  State.  119  Ind.  4SS,  21 
N.  E.  Rep.  11;  Foster  v.  Bringham,  99 
Ind.  505;  Lawless  v.  Harrington,  75 
Ind.  379:  Smith  v.  Ryan,  83  Ind.  152; 
Austin  v.  Earhart,  8S  Ind.  182;  Bos- 
well  v.  State,  S  Ind.  489;  Davis  v.  Scott, 
13  Ind.  506,  Ruffing  v.  Tilton,  12  Ind. 
259;  Mdffatt  v.  Fisher,  47  Iowa,  473.474. 

1  Dale  v.  Pruins  (Cal.),  20  Pac.  Rep. 
296;  Giltrak  v.  Watters,  77  la.  149,  41  N. 
W.  Rep.  600;  Blum  v.  Whitworth,  66 
Tex.  350,  1  S.W.Rep.  10S;  Martin,  etc., 
Co.  v.  Wainscott,  66  Tex.  131.  1  S.  W. 
Rep.  264;  Georgia  Railroad  Co.  v.  Olds, 
77  Ga.  673;  Denton  v.  Woods,  S6  Teun. 
37,  5  S.W.  Rep.  489;  Duncombe  r.  Pow- 
7  -  Iowa,  185,  1S9,  39  N.W.  Rep.  261 ; 
Swift  v.  Mulkey,  17  Oregon,  532,  2  1  Pac. 
Rep.  871;  Franz,  etc.,  Co.  v.  Mielenz, 
5  Dak.  Tv.  136.  37  N.  \V.  Rep.  728; 
Topeka,  etc.,  Co.  v.  Martin,  39  Kan. 
750;  Harvie  v.  Carmack,  6  Dana  Ky.  , 
2\2.  24^:  Hoi  man  v.  Herschser  (Tex.), 
VV.  Rep.  984. 


3  Supreme  Court  Rule  III. 

*  A  disregard  of  a  ride  of  the  court, 
or  of  the  law,  requiring  errors  to  be 
specified  in  a  designated  mode  will 
justify  a  dismissal  of  the  appeal.  1  )<  itsch 
v.  United  States,  15  Wall.  539.  Or  the 
court  may  affirm  the  judgment.  Ryan 
V.  Koch,  17  Wall.  19;  Maxwell  :. 
Stewart,  21  Wall.  71;  Treat  v.  Jamison, 
20  Wall.  652.  The  usual  practice  in 
this  State  is  to  dismiss  the  appeal. 
Vaughan  v.  Ferrall,  50  Ind.  221;  Hawk- 
ins v.  McDougal,  126  Ind.  539,  25  N. 
E.  Rep.  70S;  Thomas  v.  Service.  90 
Ind.  12S.  The  same  practice  obtains  in 
other  States.  Freeman  v.  Rhodes.  36 
Minn.  297,  30  N.  W.  Rep.  S91;  State  v. 
Stewart,  6S  Wis.  234,  32  N.W.  Rep.  1 10; 
State  v.  Whitten,  21,  Mo.  App.  459. 
But  the  court  may  affirm  the  judgment. 
Apple  v.  Atkinson.  34  Ind.  518:  Rush- 
feldt  v.  Shave.  37  Minn.  2S2,  33  N. 
W.  Rep.  791;  International,  etc.,  Co.  v. 
Underwood.  67  Tex.  589,  4  S.  W.  Rep. 
2l6;  Savage  V.  Mare-eh,  3  Wash.  Tv. 
259,  21  Pac.  Rep.  380;  Territory  v. 
Langford,  3  Wash.  Ty.  279,  21  Pac. 
Rep.  3S6;  Frazier  v.  Venon,  3  Wash. 
Ty.392,  17  Pac.  Rep.  885. 


THE  ASSIGNMENT  OF  ERRORS. 


267 


specifications,  and  is  in  its  nature  closely  analogous  to  a  com- 
plaint or  declaration,1  and  the  same  reasoning  which  leads  to 
the  conclusion  that  each  paragraph  of  a  complaint  comprised 
of  several  paragraphs  must  be  good  in  itself,  requires  that  it  be 
held  that  each  specification  in  an  assignment  of  errors  should 
be  sufficient  in  itself.  If  an  assignment  of  errors  is  substantially 
a  complaint,  then,  it  is  evident  that  each  specification,  like  each 
paragraph  of  a  complaint,  must  be  complete  in  itself,2  for  one 
specification  can  not  be  aided  by  another,  or  by  others,  and  so  it  is 
held.3  It  is,  therefore,  necessary  that  each  specification,  un- 
aided by  any  other,  shall  state  at  least  one  point  upon  which  a 
ruling  of  the  trial  court  can  be  reviewed.  The  court  will  not 
undertake  to  combine  the  different  specifications,  and,  bv  a 
combination,  produce  a  valid  assignment,  since  to  do  so  would 
be  to  violate  the  fundamental  rules  of  pleading,4  nor  would  it 
be  just  to  the  appellee  for  the  court  to  do  work  for  the  appellant 
by  constructing  for  him  a  proper  pleading  in  the  form  of  an 
assignment  of  errors. 


1  Associates  of  The  Jersey  Company 
v.  Davison,  5  Dutch  (N.J.),4i5;  Free- 
born v.  Denman,  2  Hals.  (N.  J.)  190; 
Moody  T.Yreeland,  7  Wend.  55;  Clarke 
r.  Bell,  2  Litt.  (Ky.)  162;  Fitch  v.  Loth- 
rop,  2  Root  (Conn.),  524.  In  the  case 
first  named  the  court  said :  "  The  assign- 
ment of  errors  is  a  pleading  filed  by  the 
party  complaining  of  the  errors  of  the 
judge,  and  each  assignment  should  be 
single  and  not  multifarious."  In  sup- 
port of  this  statement  these  cases  were 
cited:  Oliver  v.  Phelps,  Spencer,  180, 
1S3;  Coxe  v.  Field,  1  Green'  (N.  J.), 
215,  21S;  Williams  v.  Shepherd,  1 
Green,  76,  78;  Ludlam  v.  Broderick,  3 
Green.  269,  275. 

2  The  specification  must,  as  is  else- 
where more  fully  shown,  describe  and 
designate  the  ruling  of  which  a  revision 
is  sought.  It  will  not  do  to  specify  one 
ruling  and  argue  questions  arising  upon 
another  ruling.  Dye  v.  State  (Ind.), 
(Oct.  15,  '90. 


5  Trammel  v.  Chipman.  74  Ind.  474. 
Lake  v.  Lake,  99  Ind.  339. 

4  In  the  case  of  Trammel  v. Chipman. 
supra,  the  cases  of  Higgins  v.  Kendall, 
73  Ind.  522,  and  McCallister  v.  Mount. 
73  Ind.  559,  were  cited  and  the  court 
said:  ''A  number  of  defective  assign- 
ments can  not  be  combined  to  consti- 
tute a  good  one,  any  more  than  several 
insufficient  paragraphs  of  a  complaint 
can  be  deemed  to  make  a  good  com- 
plaint. The  assignment  of  errors  is.  in 
effect,  the  appellant's  complaint  in  this 
court,  and,  like  the  paragraphs  of  the 
complaint,  each  separate  specification 
must  in  itself  state  a  sufficient  cause  for 
reversing  the  judgment."  This  rule 
leads  logically  to  the  conclusion  often 
declared,  that  where  there  is  one  good 
paragraph  of  a  complaint  an  assign- 
ment of  errors  challenging  the  sufficien- 
cy of  the  pleading  for  the  first  time  on 
appeal  is  unavailing.  Ashton  V.  Shep- 
herd, 120  Ind.  69. 


268  APPELLATE  PROCEDURE. 

§  310.  Appeals  from  the  Marion  Superior  Court — The  practice  in 
appeals  from  the  Marion  Superior  Court  is  a  peculiar  one,  and 
it  mav  well  be  doubted  whether  the  decisions  which  created  it 
are  well  supported,  but  the  practice  is  now  too  firmly  settled  to 
justify  a  change  by  judicial  decisions.  The  rule  is,  that 
errors  must  be  specified  upon  the  ruling  of  the  general  term  in 
affirming  or  reversing,  as  the  case  may  be,  the  judgment  of  the 
special  term.1  It  is  not  easy  to  reconcile  this  ruling  with  the 
fundamental  doctrine  that  errors  must  be  specifically  assigned, 
but  as  the  errors  must  be  specified  in  the  assignment  of  errors 
tiled  in  the  general  term  there  is  no  great  practical  harm  done 
in  holding  that  the  general  statement  in  the  assignment  made 
in  the  Supreme  Court  is  sufficient.  While  the  specification 
must  be  based  upon  the  ruling  of  the  general  term  in  affirming 
or  reversing,  as  the  case  may  be,  the  judgment  of  the  special 
term,  it  is,  nevertheless,  true  that  only  such  questions  as  were 
appropriately  presented  at  special  term  can  be  considered  on 
appeal.2  The  appeal  must,  with  rare  exceptions,  be  taken  from 
the  general  term  and  can  not  be  taken  directly  from  the  special 
term.'5  The  errors  must  be  well  assigned  in  the  general  term 
or  no   question  will   be  presented   on  appeal.4     The  record,  in 

1  Wesley    v.    Milford,   41    Ind.   413;  2  Sclking  v.  Jones,  52  Ind.  409;   Huff- 

Farman  v.  Ratcliff,  42   Ind.  537;    Wil-  man  v.  Indiana  Nat.  Bank,  51  Ind. 394; 

son  v.  Harrison,  44  Ind.  468;    Van  Dn-  Russell  v.  Harrison,  49  Ind.  97;  Thurs- 

sen  :.  Kendleburger,  44  Ind.  282;  John-  ton  v.  Boardman,  48  Ind.  426;  Bush  v. 

son  v.  Kohl,  55  Ind.  454;  Cline  v.  Love,  Grover,  etc.,  Co.,  4S   Ind.    258;     Car- 

47  Ind.  258;   Munson  v.  Lock,  48  Ind.  penter  v.  Sigler,  47  Ind.  202.     An   ap- 

ti6;    Heshion   v.   Scott,   94   Ind.   570;  peal  will  lie  from  a  reversal  of  the  judg- 

Kirland  v.  Stumph,  73  Ind.  514;  Deitch  ment  of  the   special   term.     Dubois    v. 

Demott,  S9  Ind.  601;   Hereth  v,  Hereth,  Johnson,  81  Ind.  520. 

100  Ind.  35;   Patterson  v.  Scottish,  etc.,  3  McNeely  v.  Holliday,  105  Ind.  324; 

Co.,  107  Ind.  497;    Rotach  v.  McCarty,  Gutperle  v.  Koehler,  S4  Ind.  237;  Wil- 

102   Ind.  461;    Beineke   v.   Wurgler,  77  son  v.  Vance,  55  Ind.  394. 

Ind.  468;    Leary  v.  Smith,  81    Ind.  90.  *  Smith*'.  Harris, 76 Ind.  104;  Cleave- 

The  practice  in  appeals  from  the  Mar-  land  v.  Vajen,  76  Ind.  146.     Only  such 

ion  Superior  Court  is  so  peculiar  that  errors  as  are  well   assigned  in   general 

Li    is    difficult    to    determine    where    to  term  will  be  considered  on  appeal.  Mc- 

treat  the  subject,  but  we  have  concluded,  Laughlin  v.  Child,  62  Ind.  412;  State  v. 

not  without  hesitation,  that,  as  the  prac-  Terre  1 1  ante,  etc.,  Co.,  04  Ind.  297;  In- 

tice  prevailing  in  such  cases  forms  an  dianapolis,  etc.,  R.  Co.  v.  Negley,  62 

exception  to  the  rule    that    errors    must  Ind.  17S;    "Miller  v.  State,  6 1  Ind.  503. 
be  specifically  assigned,  the  subject  may 
be  treated  here  as  well  as  elsewhere. 


THE   ASSIGNMENT  OF  ERRORS.  269 

case  of  a  reversal  by  the  general  term,  must  be  so  made  up  as 
to  show  the  rulings  upon  which  the  judgment  at  special  term 
was  reversed.1  Where  the  errors  are  well  assigned  in  general 
term  and  the  specifications  rest  upon  rulings  to  which  objections 
at  special  term  were  properly  made  and  exceptions  duly  taken, 
the  questions  will  be  presented  on  appeal  by  a  general  assign- 
ment that  the  general  term  erred  in  affirming  or  reversing,  as 
the  case  may  be,  the  judgment  of  the  special  term.2  An  ex- 
ception to  the  judgment  in  general  term  need  not  be  entered.3 
The  rules  governing  the  assignment  of  errors  in  the  Supreme 
Court  apply,  with  few  exceptions,  to  the  assignment  of  errors 
in  the  general  term  of  the  Superior  Court.4 

§311.  By  whom  Errors  must  be  Assigned — The  proper  party, 
must  assign  error  or  the  assignment  will  be  unavailing.  Thus, 
where  a  judgment  was  rendered  against  a  township  it  was  held 
that  an  assignment  of  errors  by  the  trustee  was  of  no  avail  and 
that  the  appeal  must  be  dismissed.5  One  party  can  not  assign 
error  for  another  unless  there  is  a  joint  interest.6  The  doctrine 
illustrated  in  the  cases  referred  to  rests  on  solid  ground,  for 
where  there  is  no  judgment  against  a  party  he  has  nothing  to 
submit  for  review  to  the  appellate  tribunal.  While  there  can 
be  no  doubt  as  to  the  soundness  of  the  general  doctrine  there 

1  Hanna  v.  Aebker,  84  Ind.  411;  Gut-  72,  iS  N.  E.  Rep.  275;  Goodwin -\  Fox, 
perle  v.  Koehler,  84  Ind.  237;  McWhin-  129  U.  S.  601,  32  Law.  Ed.  S05;  Powell 
ney  v.  Briggs,  85  Ind.  535.  v.   Sturdevant,  85   Ala.  243,  4  So.  Rep. 

2  Alexander  v.  The  Northwestern,  71S;  Tripp  v.  Duane,  74  Cal.85,  15  Pac. 
etc.,  University,  57  Ind.  466;  Indianap-  Rep.  439.  See,  generally,  Smoot  v. 
olis,  etc.,  Co.  v.  Cincinnati,  etc.,  R.  Co.,  Boyd,  87  Ky.  642.9  S.  W.  Rep.  829; 
45  Ind.  281;  Carney  v.  Street,  41  Ind.  Ahern  v.  McGeary,  79  Cal.  44,  21  Pac. 
396;   Wesley  v.  Milford,  41  Ind.  413.  Rep.  540;   Elkin  r.Gregor,  30  S.  C.422, 

3  Linsman  v.  Huggins,  44  Ind.  474.  9  S.  E.  Rep.  335;    Hiel  v.  Hiel,  40  Kan. 

4  Bartholomew  v.  Preston,  46  Ind.  69,  19  Pac.  Rep.  340;  Martin  v.  Kanouse, 
2S6;  Patterson  v.  The  Indianapolis,  2  Abbott  Pr.  390;  O'Brien  v.  Brown- 
etc,  Co.,  56  Ind.  20.  A  joint  assign-  ing,  49  How.  Pr.  109, 113;  Tracey  v.  First 
ment  of  errors  in  general  terms  must,  National  Bank  of  Selma,  37  N.  Y.  523, 
as  a  general  rule,  be  good  as  to  all  who  People  v.  Lynch,  54  N.Y.681.  In  Grant 
join  in  it  or  it  will  be  good  as  to  none.  v.  Hubbell,  2  Jones  &  S.  (N.  Y.)  224.  it 
Hadley  v.  Milligan,  100  Ind.  49.  was  held  that  a  party  can  not  complain 

5  Mcllwaine  v.  Adams,  46  Ind.  580.  of  an  order  made  before  he  came  into 

6  Brown  v.  Miner,  128  111.  14s,  21  N.  E.  court,  but  this  doctrine,  as  we  suppose, 
Rep.  223;    Paulsen  v.  Manske,  126  111.  must  be  taken  with  some  qualification. 


270  APPELLATE  PROCEDURE. 

may  be  some  difficulty  in  giving  it  practical  effect,  inasmuch  as 
it  may  in  some  instances  be  difficult  to  determine  whether  a 
judgment  so  far  affects  the  interest  of  a  party  as  to  entitle  him 
to  have  it  reviewed.  Instances  of  the  kind  indicated  are,  how- 
ever, so  very  rare  that  they  do  not  impugn  the  correctness  of 
the  general  statement  that  it  is  only  the  parties  against  whom 
a  judgment  is  rendered  that  can  rightfully  assign  error,  but 
there  may  be  cases  where  the  general  rule  can  not  be  applied 
in  all  its  strictness.1 

§  312  Iutervenors — Persons  who  become  interested  in  a  con- 
troversy, although  not  strictly  parties  to  the  original  action,  or 
suit,  may,  in  some  exceptional  instances,  become  intervenors, 
and,  as  such,  appeal  and  assign  error.  Thus,  a  creditor  who 
has  appeared  in  a  creditor's  action  may  assign  error  upon  a  rul- 
ing denying  him  a  distributive  share  of  the  funds  in  the  hands 
of  the  court.2  So,  as  it  has  been  held,  an  attorney  who  has 
been  denied  fees  due  him,  and  for  which  he  is  entitled  to  a 
lien,  may  assign  error  upon  an  order  refusing  an  allowance.3 
In  a  New  York  case  the  doctrine  that  a  person  interested  in  a 
controversy  may  appeal,  has  been  applied  to  the  case  of  a 
surety  on  an  injunction  bond,  but  this  is  a  very  doubtful  decision.4 
It  may  be  well  to  say,  to  prevent  misunderstanding,  that  where 
a  party  obtains  a  partial  judgment,  but  not  all  that  he  is  entitled 
to,  the  general  rule  will  not  operate  to  prevent  him  from  as- 
signing errors,  provided,  of  course,  he  has  taken  the  proper 
steps  in  the  lower  court. 

§  313.  Incidental  Issues — In  the  exceptional  class  of  cases 
mentioned  in  the  preceding  paragraph  the  collateral  issue  (col- 
lateral in  the  sense  of  being  incident  to  and  connected  with  the 
general  controversy,  although  not  an  integral  part  of  it)  must, 
of  course,  be  presented  to  the  trial  court  for  decision  in  some 

1  Hobart  v.  Hobart,  S6  N.  Y.  636;  s  McKenzie  v.  Rhodes,  13  Abbott's 
Louden  v.  Louden,  65  How.  411 ;  Mc-  Pr.  R.  337;  Louden  v.  Louden,  65 
Kenzie  v.  Rhodes,  13  Abbott's  Pr.  R.     How.  Pr.  R.  411. 

337;   Attorney  Gen.  v.  North  Am.  Life         *  Hotchkiss    v.    Piatt,    7    Hun.  56,    2 
Ins.  Co.,  77  N.  Y.  297,  6  Abb.  (N.  C.)     Tidd's   Pr.  1135;    Sholty    v.  Mclntyre 

(111.)  28  N.  E.  Rep.  42. 

2  Anonymous,  iS   Abb.  Pr.  87.     See 
ante,  §  137. 


THE    ASSIGNMENT  OF  ERRORS.  271 

appropriate  mode,  for  the  higher  court  can  not  take  up  the  rul- 
ings on  the  collateral  issues  as  an  independent  controversy  ; 
on  the  contrary  it  can  not  with  propriety,  or  with  right,  adju- 
dicate upon  any  questions  save  the  rare  ones  which  may  be 
made  on  appeal  for  the  first  time,  except  those  presented  for 
decision  in  the  court  below.  It  is  always  necessary,  therefore, 
to  present  these  incidental  questions  to  the  trial  court  for  de- 
cision and,  on  appeal,  to  assign  as  error  the  decisions  on  such 
questions,  or,  in  the  proper  case,  the  refusal  to  make  a  decision. 
This  conclusion  results  from  the  settled  general  principle  that 
an  appellate  tribunal  reviews  decisions  but  does  not,  as  a  rule, 
decide  original  questions.1 

§  314.  Only  Injured  Parties  can  Assign  Error — Errors  can  be 
assigned  only  by  persons  injuriously  affected  by  the  rulings 
upon  which  they  assume  to  allege  error.2  This  is,  indeed,  im- 
plied in  what  has  already  been  said,  but  it  may  not  be  unprofit- 
able to  carry  the  implication  into  a  full  and  express  statement. 
It  is  not  the  duty  of  an  appellate  tribunal,  nor,  indeed,  is  it  the 
right  of  such  a  tribunal,  to  entertain  objections  from  one  who 
has  suffered  no  injury  from  the  rulings  or  proceedings  of  which 
he  assumes  to  make  complaint.  This  rule  is  a  very  general 
one  and  its  sweep  is  very  wide.  It  is  not  changed  or  affected 
by  the  fact  that  the  person  who  assumes  the  right  to  assign 
error  was  a  party  to  a  suit  or  action  in  which  rulings  were  made 
that  worked  harm  or  prejudice  to  the  rights  of  other  parties.3 

§  315.  Parties  Privies  may  assign  error — Authorities  may  be 
found  in  the  text-books  and  the  reports  asserting  that  writs  of 

1  Raymond  v. Butterworth.  139  Mass.  con's  Abr.  129;   1  Rob.  Abr.  748;  Claw- 

471;   Wiley   v.   Lovely,    46    Mich.    83;  son  v.  Chicago,  etc.,  R.  Co.,  95  Ind.  152. 

Coleman  v.  Dobbins,  8  Ind.  156;  Shan-  See,  also,  Hamilton   v.  Barricklow,  96 

non  v.  Spencer,  1  Blackf.  120;  Brown-  Ind.  39S;  Mason  v.  Mason,  102  Ind.  3S. 

lee  v.  Hare,  64  Ind.  311;  National  Bank,  3  Chicago  v.  Cameron,  120111.447,451; 

etc.,  v.  Dunn,  106  Ind.  no;  Byington  v.  Gage  v.  Reid,  11S  111.    35;  Ransom   v. 

Comm'rs,  37  Kan.  654,  16  Pa.  Rep.  105;  Henderson,   114  111.    528,    531;    Beal   v. 

Wetmore  v.  Plant,   5   Conn.  541.     See,  Harrington,  116  111.  113,  119;  Farnan  v. 

also,  Moore  f.  Harland,  107  Ind.  474.  Borders,     119    111.    22S,   230;     Cool     v. 

1  Berghoff  v.  McDonald,  87  Ind.  549;  Peters,  etc.,  Co.,  S7  Ind.  531.    See,  also, 

Wiley  v.  Coovert,  127   Ind.  559;  2  Ba-  Dawson  v. Wilson,  79  Ind.  4S5. 


272  APPELLATE  PROCEDURE. 

error  may  be  sued  out  by  persons  who  are  privies  to  the  record, 
and  this  general  common  law  rule  has  been  applied  to  a  variety 
of  cases.1  It  would  seem  to  follow  from  this  rule  of  the  common 
law  that  privies  to  the  record  may  appeal  and  assign  error,  and 
there  can  be  little  doubt  that  where  the  record  brought  up 
by  the  appeal  shows  the  privity,  this  rule  should  be  enforced 
under  our  statute  or  similar  ones.  But  the  difficulty  lies  in  ap- 
plying the  common  law  rule  to  a  case  where  the  record  brought 
before  the  appellate  tribunal  does  not  disclose  the  privity.  It  is 
generally  true  that  a  party  can  not  establish  his  right  to  assign 
error  by  offering  evidence  of  matters  not  apparent  of  record, 
but  there  are  exceptions  to  the  general  rule,  as,  for  instance, 
the  familiar  cases  where  the  death  of  one  of  the  parties 
makes  it  necessary  to  admit  his  representative,  but  in  such 
cases  there  is  no  addition  to  the  record  proper,  nor  any  contra- 
diction. All  that  is  done  in  such  cases  is  to  supply  parties. 
There  are  cases  where  one  of  the  original  parties  transfers  his 
interest,  or  where  it  passes  from  him  by  operation  of  law  in 
which  the  person  who  succeeds  to  that  interest  may,  upon  proper 
application,  be  permitted  to  assign  errors  and  prosecute  the  ap- 
peal. Where,  however,  the  party  can  enter  the  case  in  the 
trial  court  it  is  his  duty  to  do  so,  otherwise  he  is  in  no  situation 
to  assert  a  right  to  assign  errors.  If  he  is  not  a  party  to  the 
judgment  or  the  privy  of  a  party  he  is  not  bound  by  it  and  can 
not  be  prejudiced,  so  that  there  is  really  no  ruling  working  him 
harm,  and  if  he  is  not  prejudiced  there  is  no  reason  why  he 
should  be  allowed  to  contest  the  validity  of  the  judgment. 

§  316.  The  Assignment  can  not  contradict  the  Record — A  person 
not  appearing  of  record  to  be  a  party  to  the  suit  or  action  can 
not  appeal  or  assign  error  where  his  claim  involves  a  contra- 
diction of  the  record.     If  a  right  of  appeal  claimed  by  a  party 

1  City  of  Pcnsacola  v.  Reese,  20  Fla.  v.  Davis,  1  Ga.  495;  Dupree  v.  Perry.  18 

L37;    Townsend    7'.  Davis,  1   Ga.  495;  Ala.  34;   Harrington  :•.  Roberts.  7  Ga. 

Watson    v.    Willard,    9    Pa.     St.    S9;  510;  Huner  v.  Reeves,  2  Green  (Iowa), 

Campbell  v.  Kent,  3  P.  &  W.  72;  God-  190;    Bayard  v.  Lombard,  9  How.  (U. 

frey's  Case,    11    Co.  R.  45;    Randall's  S.).  530;  Thomas  v.  Wyatt,  9  S.  &  M. 

2  Mod. R. 308;  Green  v.  Watkins,  308;  2  Bacon's  Abridg.  195;  ante,  §§  137, 

6  Wheat.260.    See, generally ,Townsend  312. 


TIIK   ASSIGNMENT  OF  ERRORS.  273 

is  asserted  upon  matters  contravening  the  record  he  can  not 
succeed.  This  conclusion  must  result,  or  else  it  must  be  con- 
ceded that  the  record  may  be  contradicted  on  appeal,  and  this, 
it  is  well  agreed,  can  not  be  done.1  Errors,  as  we  have  here- 
tofore said,  in  substance,  must  be  assigned  upon  the  record, 
tried  by  the  record  and  determined  by  the  record.2  A  party 
can  not  make  good  his  right  to  assign  errors  bv  alleging  mat- 
ters supplying  deficiencies  or  changing  the  record  made  in  the 
trial  court.3  He  may,  of  course,  have  the  transcript  truly  ex- 
hibit the  rulings  and  proceedings  of  the  trial  court,  but  he  can 
not  ask  the  appellate  tribunal  to  add  to  or  subtract  from  such 
rulings  or  proceedings,  although  he  may,  in  some  instances, 
show  matters  that  have  occurred  since  the  record  was  made. 

§  317.  A  favorable  Ruling  can  not  be  assigned  as  error — Em- 
braced within  the  scope  of  the  general  principle  that  only  the 
parties  who  are  injured  by  the  rulings  of  the  trial  court  can  as- 
sign errors,  is  the  subsidiary  rule  that  a  party  can  not  complain 
of  an  erroneous  ruling  in  his  favor.4  This  seems  so  clear  that 
it  is  singular  that  parties  favored  by  a  ruling  should  complain, 
and  yet  the  adjudged  cases  show  that  complaint  has  been  otten 
made  by  such  parties,  but  always  without  avail.  Closely  allied 
to  the  rule  just  stated  is  that  which  denies  a  party  the  right  to 
make  an  erroneous  ruling  available  which  his  own  request  pro- 
cured or  which  was  made  at  his  instance.5  It  is  so  manifest 
that  it  would  be  subversive  of  principle  to  permit  a  party  to  se- 
cure an  erroneous  ruling  and  then  make  it  the  ground  for  an 

'Cook    v.    Conway,  3    Dana    (Kv.),  John  v.  Clayton,  1  Blackf.  54;   President 

454;     Shirly  v.  Lunenburgh,  11   Mass.  of  State  Bank  v.  State,  1   Blackf.  267; 

379;  Brown  v.  Caldwell,  10  Serg.  cV  R.  Barker-'.  Hobbs,  6Ind.  3S5;   Robertson 

(Pa.)   114;     Clemson  v.   State  Bank,   1  v.    Caldwell,    9    Ind.    514;     Hunter    v. 

Scam.  (111.)  45.  Leavitt,  36  Ind.  141. 

2  Kline  v.  Kline,  49  Mich.  419;  Bing-  5  Calumet  Iron,  etc.,  Co.  v.  Martin, 
ham  v.  Cabbott,  3  Dall.  (U.  S.)  19;  115  111.  358.  Upon  the  same  principle 
Beach  v.  Packard,  10  Vt.  96.  it  is  held  that  a  party  can  not  success- 

3  Barndollar  v.  Cotton,  5  Col.  29;  fully  object  to  a  judgment  upon  the 
Wishmier  v.  State,  no  Ind.  523;  ground  that  his  own  pleading  is  de- 
Thames  Loan,  etc.,  Co.  v.  Beville,  100  fective.  Henderson  v.  Barbee,  6  Blackf. 
Ind.  309.  26. 

4  Bethell    v.    Mathews,    13    Wall.    1; 

18 


274  APPELLATE  PROCEDURE. 

assault  upon  the  judgment  of  the  trial  court,  that  it  is  hardly 
worth  the  while  to  cite  authorities. 

§  318.  Joint  Assignments — Where  several  parties  unite  in  one 
assignment  of  errors  they  will  encounter  defeat  unless  the  as- 
signment is  good  as  to  all.  If  the  errors  affect  the  parties  sev- 
erally and  not  jointly  the  proper  practice  is  for  each  party  to 
assign  errors,  for  the  rule  is  well  settled  that  a  joint  assignment 
will  not  permit  one  of  several  parties  to  avail  himself  of  errors 
alleged  upon  rulings  which  affect  him  alone  and  not  those  with 
whom  he  unites  in  the  assignment.  The  rule  that  a  joint  as- 
signment of  errors  must  be  good  as  to  all  who  unite  in  it  is  in 
harmony  with  the  general  principle  of  pleading  which  requires 
a  demurrer,  an  answer,  or  a  motion,  to  be  good  as  to  all  who 
join  in  it.1 

§  319.  Exception  to  the  general  Rule — To  the  rule  that  a  joint 
assignment  of  errors  must  be  good  as  to  all  who  unite  in  it  there 
is  one  well  defined  exception  and  that  is  this :  where  husband 
and  wife  are  parties  an  assignment  will  be  good  as  to  both  if  it 
is  good  as  to  the  wife.2  This  doctrine  trenches  upon  the  gen- 
eral rule  and  grows  out  of  the  peculiar  relation  of  husband  and 
wife,  for,  the  old  theory  that  the  baron  and  Jane  constitute  in 
law  one  person  has  not  been  entirely  overthrown,  notwithstand- 
ing the  radical  changes  made  by  our  statute.3     It  is  evident, 

1  Wall  v.  Bagby,  126  Ind.  372,  2f>  N.  Ind.  42;     Walls  v.  Baird,  91   Ind.  429; 

,E.  Rep.  60;    Hawkins  -'.  Heinzman,  126  Williams  v.  Riley.  S8  Ind.  290;  Towell 

Ind.  600.  2^  N.  E.  Rep.  70S;   Arbuckle  v.   Hollweg,  Si  Ind.  154;  Teter  v.  Hin- 

v.  Swim,  i23lnd.2oS;   Powers  :•.  Town  ders,  19  Ind.  93;  Estep  v.  Burke,  19  Ind. 

of  New  Haven,  120  Ind.  1S5;   Sparklin  S7;   Kimbrell  v.  Rodgers,  90  Ala.  339,  7 

v.  St.  James  Church,  119  Ind.  535;   Or-  So.  Rep.  241. 

ton  t'.Tilden.  no  Ind.  131,  10N.E.  Rep.  2  Stewart  v.  Babbs,  i2oInd.56S.  This 

936;    Hochstedler   -'.    Hochstedler,   10S  decision  proceeds  substantially  upon  the 

Ind.  506,  9  N.   E.  Rep.  467;  Tucker  v.  same   ground    on   which  rests  the  rule 

Conrad,   103  Ind.  349:    Hinkle  v.  Shel-  that  a  husband  may  unite  in  an  action 

ley,   100  Ind.  SS;   Walker  v.  Hill,  111  with  his  wife  although  the  cause  of  ac- 

Ind.  223.  12  N.  E.   Rep.  3S7;   Rogers  v.  tion  is  in  her. 

Union,  etc.,  Co.,   m   Ind.  343,  S.  C.  60  3  Barnett    v..  Harshbarger,    105    Ind. 

Am.   Rep.  701;   Lake  v.  Lake.  99  Ind.  410;  Johnson  v.  Jouchert.  124  Ind.   105, 

339;    Robbins   v.   Magee,  96  Ind.  174;  107.    See,  generally,  Harrell  v.  Harrell, 

:    -.   Pfeifer,  95  End.  599;   Quick   v.  117  Ind.  94;    Preston  -•.  Fryer,  38  Md. 

Brenner,  101  Ind.  230;  Durham  ■y.Craig,  221;  Gebb  v.  Rose,  40  Md.87;  Jenne  v. 

79   Ind.  117;   Becknell  v.  Becknell,  no  Marble,  37  Mich.  319. 


THE  ASSIGNMENT  OK  ERRORS.  275 

therefore,  that  the  doctrine  can  prevail  only  to  a  limited  extent 
and  that  it  can  not  be  extended.  It  forms  an  exception  to  a 
very  general  and  necessary  rule  of  practice  and  is  not  to  be 
carried  beyond  the  reason  which  gives  it  vitality. 

§  320.  Caring  Defects  in  the  Assignment — It  has  been  held  that 
where  a  joint  assignment  is  made  which  is  not  good  as  to  all 
who  join  in  it,  the  infirmity  is  cured  if  the  parties  for  whom  no 
error  is  alleged  decline  to  join  in  the  appeal.1  No  authorities 
are  adduced  in  support  of  this  conclusion  nor  are  any  reasons 
given.  The  ruling  may,  however,  be  upheld  upon  the  ground 
that  an  assignment  of  errors  may  be  amended,  and  that  the 
refusal  of  the  parties  as  to  whom  the  assignment  was  bad  to 
join  in  the  appeal  operated  substantially  as  an  amendment.  It 
may  also  be  said,  in  support  of  the  decision,  that  it  tends  to 
promote  justice  without  disturbing  to  any  injurious  extent  the 
harmony  of  the  system  of  appellate  procedure.  When  the  par- 
ties refused  to  join  in  the  appeal  they  ceased  to  be  appellants, 
leaving  in  court  only  those  as  to  whom  errors  were  well  as- 
signed, so  that,  in  fact,  there  was  no  joint  assignment  good 
only  as  to  part  of  those  by  whom  it  was  made. 

§  321.  Correcting  the  Assignment  of  Errors  as  to  Parties — Where 
the  appellants  discover  that  their  assignment  of  errors  is  not 
good  because  as  to  some  who  join  in  it  errors  are  not  well  as- 
signed, they  may,  under  the  decision  to  which  we  have  referred, 
cure  the  infirmity  by  securing  a  refusal  to  join  in  the  appeal 
from  those  with  whom  they  erroneously  united,  but  a  refusal 
not  secured  before  the  case  is  taken  up  for  consideration  by  the 
court  would  probably  be  unavailing.  Promptness  is  required 
in  kindred  cases,  and  there  is  no  reason  why  it  should  not  be 
exacted  in  such  cases  as  those  under  immediate  mention.  It 
would,  at  all  events,  be  too  late  to  attempt  to  heal  the  infirmity 
after  a  decision  has  been  announced.2    It  is  hardly  necessary  to 

1  Cooper  v.  Hayes,  96  Ind.386,  390.  The  reasoning  of  the  court  in  support 

2  State  v.  Terre  Haute,  etc.,  Co.,  64  of  the  proposition  that  it  has  no  discre- 
Ind.  297.  In  this  case  the  court,  not-  tion  but  must  affirm  the  judgment  is  far 
withstanding  the  strong  showing  made,  from  satisfactory,  and  certainly  it  is 
refused  to  change  the  judgment  of  af-  unsupported  by  authority. 

firmance  to  one  dismissing  the  appeal. 


276 


APPELLATE   PROCEDURE. 


suggest  that  the  safe  course,  and  the  lawyer-like  course,  is  to 
assign  errors  as  the  rule  requires  in  the  first  instance,  for  a  party 
w  ho  disregards  settled  rules  is  not  in  a  situation  to  demand  very 
much  as  a  matter  of  right,  but  he  must  obtain  relief,  if  he  ob- 
tains it  at  all,  rather  as  a  matter  of  grace  than  as  a  matter  ot 
right. 


§  322.  Naming  Parties — The  rule  that  the  names  of  the  parties 
must  be  stated  in  the  assignment  of  errors  has  been  uniformly 
and  strictly  enforced.1  There  is  reason  for  this  strictness.  It 
tends  to  systematize  the  procedure,  it  compels  the  identification 
of  parties  and  thus  enables  process  to  be  issued  against  the  proper 
persons.  The  rule  is  required  by  consistency,  for  a  complaint 
in  an  appellate  court,  quite  as  much  as  a  complaint,  bill  or  dec- 
laration in  the  trial  court,  can  not  be  complete  without  naming 
the  parties  to  the  suit  or  action. 

§  323.  Exceptions  to  the  Rule  requiring  names  of  Parties — An  ap- 
parent exception  to  the  rule  requiring  an  assignment  of  errors 
to  give  the  names  of  all  the  parties  is  created  by  a  case  holding 
that  where  a  person  is  made  a  party  to  the  action  in  the  trial 
court  it  is  not  necessary  to  name  him  in  the  assignment  of  errors 
where  it  appears  that  he  was  not  served  with  process  in  the 
trial  court.2     The  exception  is  apparent  rather  than  real,  for  if 


1  Snyder  v.  State,  124  Ind.  335;  Bra- 
den  v.  Leibenguth,  120  Ind.  336,  25  N. 
E.  Rep.  S99;  Thoma  v.  State.  86  Ind. 
182;  Todd  v.  Wood,  80  Ind.  429;  Lou- 
isville, etc.,  Co.  v.  Head,  71  Ind.  [76; 
Kiley  v.  Perrin,6g  Ind.  387;  Darnall  v. 
Hurt,  55  Ind.  275;  Lang  v.  Cox,  35  Ind. 
470;  Green  River,  etc.,  Co.  ;.  Mar- 
shall, 42  Ind.  470:  State  v.  Irish.  42 
Ind.  506;  Burke  v.  State,  47  Ind.  528; 
Peden  v.  Noland,  45  Ind.  354;  State 
v.  Delano,  34  Ind.  52;  Brookover  :. 
Forst,  31  Ind.  255;  VanCleve  v. 
Boler,  34  Ind.  538;  Wickham  v. 
Hess,  38  Ind.  1S3;  Thomas  v.  Serv- 
ice,  90  Ind.  12S.  See  Supreme  Court. 
Rule  VI.  It  is  held  by  the  Supreme 
Court  of  the  United  States  that  where 


error  is  assigned  by  a  party  in  a  repre- 
senative  capacity  the  assignment  should 
show  that  he  has  a  right  to  prosecute 
an  appeal  in  that  capacity.  Green  -■. 
Watkins,  6  Wheat.  200.  This  rule  was 
approved  and  enforced  in  Rundles  :  . 
Jones,  3  Ind.  35,  but  we  do  not  believe 
that  it  is  applicable  to  our  presenl  sys- 
tem of  procedure.  In  Taplev  v.  McGee, 
6  Ind.  56,  it  was  held  that  the  question 
was  waived  by  a  joinder  in  error.  We 
incline,  however,  to  the  opinion  that 
the  objection  must  be  made  by  a  proper 
denial  of  capacity  and  that  it  is  waived 
by  inaction  as  well  as  by  a  joinder  in 
error  in  the  usual  form. 

2  Wilstach    v.    Heyd,     122    Ind.   574. 
This  case,  it  may  he  remarked,  supplies 


THE  ASSIGNMENT  OF  ERRORS.  277 

there  was  no  service  at  all,  the  party  was  not  before  the  lower 
court,  and  it  is  clear  that  it  can  not  be  required  of  the  appellant 
that  he  should  bring  before  the  appellate  tribunal  a  person  who 
was  not  a  party  to  the  action  in  the  lower  court.  While  it  is 
the  duty  of  the  appellant  to  name  all  who  were  parties  to  the 
judgment  in  a  just  sense,  it  is  not  necessary  for  him  to  name 
those  who  were  simply  named  in  the  complaint  but  who  were 
never  in  court. 

§  324.  Groundwork  of  the  Assignment — In  by  far  the  greater 
number  of  cases  the  groundwork  for  the  assignment  of  errors 
must  be  laid  in  the  trial  court  by  the  objections  and  exceptions 
there  presented,  and  if  it  is  not  properly  constructed  no  valid 
assignment  of  errors  can  be  founded  upon  it.  Many  cases 
correctly  affirm  that  there  is  no  valid  specification  of  error,  but 
give  an  insufficient  reason,  or,  rather,  an  irrelevant  one,  for  the 
conclusion  asserted.  Thus,  it  is  often  said  that  a  specification 
that  the  "judgment  should  have  been  for  the  defendant  instead 
of  for  the  plaintiff,"1  is  bad  for  the  reason  that  it  is  too  general  ; 
whereas,  the  true  reason,  or,  at  all  events,  the  chief  and  influen- 
tial reason,  why  it  is  bad,  is  because  the  proper  specifications 
were  not  made  in  the  trial  court ;  in  other  words,  the  ground- 
work was  not  properlv  laid.  It  is,  beyond  doubt,  correct  to 
say,  as  is  frequently  done,  that  a  general  assignment  of  errors 
is  bad,2  but  it  is  not  correct  to  say  that  the  assignment  is  bad 
because  it  is  too  general  in  a  case  where  it  is  bad  for  the  reason 

an  illustration  of  the  rule  that  parties  Whitney  ?'•  Lehmer,  26  Ind.  503;  State 
must  adhere  to  the  theories  upon  which  v.  Harper,  38  Ind.  13;  Holmes  v.  Phe- 
they  proceed  in  the  trial  court.  It  was  nix,  etc.,  Co.,  49  Ind.  356;  Fall  v.  Hazel- 
there  said:  "It  is  well  settled  by  the  rigg.  45  Ind.  576;  Sanxay  v.  Hunger- 
decisions  of  this  court  that  a  pleading  ford,  42  Ind.  44. 

must  proceed  upon  some  definite  theory,  2  Indianapolis,    etc.,    Co.  v.  Doty,  7 

and  if  not  good  upon  that  theory  is  not  Ind.  580;    Davis  v.  Scott,  13  Ind.  506; 

good  at  all.    This  is  a  very  salutary  and  Amick  v.  O'Hara.  6  Blackf.  25S,   King 

just  rule,  and  should  be  especially  ad-  v.   Wilkins,    10    Ind.    216;     Boswell    v. 

hered  to  by  the  appellate  court."  State,  S  Ind.  499.     There  are.  of  course, 

1  Ruffing z/.Tilton,  12  Ind.  259;   Ham-  many  cases  where  the  reason  that  an 

rick  v.  Danville,  etc..  Co..  41   Ind.  170:  assignment  of  errors  is  bad  is  because 

Gallettly    v.  Barrackman,   12   Ind.  279.  it  is  too  general.     Burbank  v.  Dyer.  54 

Abraham  v.  Chase,   11    Ind.  513;    Mc-  Ind.  392. 
Farland    v.    McFarland,    40    Ind.   458; 


278  APPELLATE   PROCEDURE 

that    no    foundation   was  laid   in  the   trial   court  by  the  proper 
specific  objections,  motions,  or  exceptions. 

§  325.  Distinction  between  resembling  Classes  of  Cases — It  is  evi- 
dent that  there  is  an  essential  difference  between  cases  where 
the  assignment  of  errors  is  bad  because  the  proper  specific  ob- 
jections were  not  presented  to  the  trial  court,  and  cases  where 
it  is  bad  because  the  specifications  of  error  are  too  general,  for, 
in  the  one  case,  there  can  be  no  amendment  on  appeal,  whereas, 
in  the  other,  the  defect  may  be  cured  by  the  proper  amendment.1 
Where  a  party  is  required  to  present  specific  objections  to  the 
trial  court,  he  is  confined  to  the  objections  there  presented,  and 
can  not  add  to  or  change  them  on  appeal.2  But  where  the  mis- 
take consists  wholly  in  making  the  specification  of  error  too 
general,  as,  for  instance,  assigning  that  a  demurrer  was  sus- 
tained to  an  answer  of  several  paragraphs  instead  of  properly 
specifying  each  paragraph,3  the  mistake  may  be  rectified  on 
appeal  by  amending  the  assignment  of  error  as  the  rules  of  pro- 
cedure require.  The  instance  just  given  of  a  ruling  on  demurrer 
to  an  answer  composed  of  several  paragraphs  serves  to  illustrate 
the  distinction  we  are  endeavoring  to  mark  and  enforce,  for,  if 
the  demurrer  had  been  addressed  to  all  of  the  paragraphs,  and 
some  of  them  were  good,  then  nothing  that  could  be  done  in  the 
appellate  court  could  rectify  the  mistake  in  demurring  to  an 
entire  answer,  when  the  demurrer  should  have  been  to  the  sev- 
eral paragraphs  distributively.  What  is  wholly  and  exclusively 
part  of  the  appellate  procedure  may,  in  the  proper  case  and 
upon  due  application,  be  amended  or  changed  by  order  or  leave 
of  the  appellate  tribunal,4  but  what  is  part  of  the  trial  court  pro- 
cedure can  not  be  altered  on  appeal,  hence  it  is  important  that 
the  pleadings  of  the  court  of  appellate  jurisdiction  should  be 
carefully  discriminated  from  those  of  the  court  in  which  the 
original  jurisdiction  resides. 

§  326.   Specifications  of  Error  Defective  because  too  general — 

Specifications  of  error  may  unquestionably   be   too  general  in 

1  Supreme  Court  Rule  III.  len    v.  Clark,   49    Ind.    77;    Starrier  v. 

2  Temple    v.    Lasher,    39    Ind.    203;     State,  61  Ind.  360. 

Griesel  v.  Schmal,  55  Ind.  475;  McMul-        3  Bolin  v.  Simmons,  81  Ind.  92. 

*  Supreme  Court  Rule  III. 


THE  ASSIGNMENT  OF  ERRORS.  279 

the  true  sense  of  the  term,'  but  where  the}'  each  respectively 
properly  specif}'  a  ruling  made  upon  pleadings,  motions,  objec- 
tions or  exceptions,  the  specification  is  sufficiently  definite  in 
cases  where  the  objections  are  required  to  be  specifically  made 
below  and  are  there  made  in  due  form.     Thus  a  specification 

of  error  that  the  "  court  gave  instructions  numbered  ,"  is 

insufficient,  not,  however,  simply  because  it  is  too  general,  but 
because  the  objection  should  be  speciricallv  made  in  the  trial 
court.2  Specifications  of  error  may,  it  is  sufficiently  evident 
from  the  bare  statement,  be  ill  for  more  reasons  than  one.  The 
rule  deducible  from  the  decisions  and  supported  by  principle  is. 
that  where  a  specification  of  error  definitely  and  certainly  des- 
ignates a  ruling  made  upon  specifications  properly  framed  in 
the  trial  court,  all  subordinate  questions  within  the  scope  of 
the  original  specifications  are  presented  to  the  appellate  tribu- 
nal for  consideration  and  decision.  Such  a  specification  may 
not,  of  course,  present  an  error  requiring  a  reversal,  but  it  will 
present  an  error  in  such  a  manner  as  to  call  the  ruling  of  the 
trial  court  in  review.  Obviously  there  is  a  distinction  between 
the  mode  of  presenting  a  question  for  consideration  and  pre- 
senting a  ruling  which  will  require  a  reversal  of  the  judg- 
ment, and  here  we  are  only  concerned  with  the  question 
whether  the  alleged  error  is  presented  in  due  form  and 
manner,  not  whether  it  is  of  such  a  character  as  to  require  the 
appellate  tribunal  to  reverse  the  judgment.  It  may  be  well 
enough  to  add  that  the  rule  we  indicate  is  essential  to  prevent 
a  violation  of  the  rule  prohibiting  multifariousness  and  useless 
prolixity  as  well  as  to  secure  clearness,  harmony  and  precision. 

§  327.   Meaning  of  the  rule  requiring  Specific  Assignments — The 

rule  that  the  assignment  of  errors  must  be  specific  does  not  implv 

1  Smith  v.  Ryan,  83  Ind.  152;  Law-  etc.,  Co.  to.  The  Studebaker,  etc., 
less  v.  Harrington,  75  Ind.  379;  Foster  Co..  117  Ind.  416;  Richardson  v.  Sey- 
v.  Bringham,  99  Ind.  505;  Clayton  v.  bold,  76  Ind.  5S;  Bane  v.  Ward,  77  Ind. 
Blough,  93  Ind.  85;  Ray  v.  Detchon,  79  153;  Hege  v.  Newsom,  c/i  Ind.  426; 
Ind.  56.  Western  Union  Tel.  Co.  v.  Kilpatrick, 

2  Pennsylvania  Co.  v.  Gallentine,  77  97  Ind.  42:  Williams  v.  Riley,  SS  Ind. 
Ind.  322.  As  will  be  hereafter  shown  290;  LaFollette  v.  Higgins.  109  Ind. 
specifications  that  properly  form  causes  241:  Daunhauer  v.  Hilton,  S2  Ind. 
in  a  motion  for  a  new  trial  can  not  be  531;  Kissel  v.  Anderson,  73  Ind.  485; 
made  specifications    of  error.     Queen,  Austin  v.  Earhart,  SS  Ind.  1S2. 


280  APPELLATE   PROCEDURE. 

that  errors  fully  and  properly  specified  by  the  appropriate  plead- 
ing, or  motion,  in  the  trial  court  must  be  again  specified  in  the 
assignment  of  errors  made  on  appeal  ;  on  the  contrary  the  rule 
is  that  where  errors  are  properly  specified  in  the  trial  court  it  is 
improper  to  repeat  the  specifications  on  appeal.  What  the  law 
requires  to  be  done  in  the  trial  court  can  not  be  done  on  appeal, 
and  it  is  not  necessary  to  specifically  repeat  on  appeal  what  was 
well  specified  below.  Erroneous  rulings  upon  pleadings  must 
be  specified  in  the  trial  court,  except  in  the  rare  cases  where 
they  may  be  assailed  in  the  first  instance  in  the  assignment  of 
errors.1  Demurrers,  motions  and  exceptions  are  the  usual  modes 
of  presenting  objections  to  the  process  and  pleadings.  A  mo- 
tion for  a  new  trial  with  causes  specifically  and  definitely  as- 
signed, is  the  appropriate  mode  of  bringing  in  review  the  rulings 
upon  matters  pertaining  to  the  trial.  A  motion  for  a  venire  de 
novo  is  a  proper  mode  of  directing  attention  to  a  defective  ver- 
dict. A  motion  for  judgment  on  answers  to  special  interroga- 
tories is  the  correct  method  of  procedure  where  it  is  desired  to 
secure  judgment  upon  the  answers  on  the  ground  that  they 
control  the  general  verdict.  A  motion  to  modify  a  judgment,  or 
specific  exceptions  to  a  decree,  may  bring  in  review  questions 
respecting  the  judgment  or  decree.  This  outline,  rough  and 
indistinct  as  it  is,  answers  our  immediate  purpose,  which  is, 
first,  to  enforce  the  general  proposition  that  errors  that  must  be 
specified  in  the  trial  court  can  not  be  effectively  again  specified 
on  appeal,  and,  second,  to  prepare  the  way  for  a  discussion  in 
detail  of  the  mode  of  assigning  errors  upon  the  rulings  of  the 
trial  court. 

§  328.  Errors  respecting  Jurisdiction  of  the  Person — It  is  natu- 
ral, as  well  as  convenient,  to  begin  with  the  mode  of  assigning 
errors  upon  rulings  respecting  jurisdiction  of  the  person,  but, 
as  other  phases  of  that  general  question  are  elsewhere  treated, 
we  shall  in  this  place  speak  only  of  that  phase  of  the  subject 
connected  with  objections  to  the  process.  Jurisdiction  of  the 
person  is  essential  to  the  validity  of  judicial  proceedings   and 

1  The  question  of  jurisdiction  of  the  tions  that  may  first  be  made  on  appeal, 
subject  is  not  isidered,  as  il  is    post,  Chaper  XXIII. 

fully  discussed  in  the  chapter  on  Ques- 


THE  ASSIGNMENT  OF  ERRORS.  281 

whether  jurisdiction  is  obtained  over  the  person  depends  upon 
whether  notice,  or  summons,  has  been  issued  and  served  as 
the  law  requires.  Objections  to  the  form  and  substance  of  the 
process  where  there  is  process  and  service  must  as  a  general 
rule  be  made  in  the  trial  court,1  and,  according  to  the  general 
principle  heretofore  stated,  all  such  specifications  as  are  neces- 
sary  to  clearly  present  the  questions  sought  to  be  raised  must 
be  made  in  the  trial  court  since  no  additional  specifications  can 
be  made  on  appeal.  No  ground,  or  cause,  for  setting  aside 
the  process,  or  its  service,  can  be  added  to  those  stated  in  the 
trial  court.  A  defective  or  incomplete  motion  can  not  be  aided 
or  cured  by  the  assignment  of  errors.2 

§  329.  Defective  Trial  Court  Process — It  is  in  accordance  with 
the  general  rule  that  motions,  objections  or  the  like  constitute 
the  groundwork  of  the  specifications  of  error  that  it  is  held  that 
where  the  defendant  is  served  with  process  he  must  first  seek 
relief  from  a  judgment  rendered  against  him  by  default  by  • 
a  proper  application  addressed  to  the  trial  court.3  The  pro- 
ceeding in  the  trial  court  must,  in.  such  cases,  conform  to  the 
law,  and  the  appellate  court,  as  a  general  rule,  although  not  al- 
ways, simply  reviews  the  question  as  presented  by  the  record 
and  determines  whether  the  trial  court  did  or  did  not  err  in  dis- 

1  Clegg  v.  Patterson,  32  Ind.  135;  3  Barnes  v.  Conner,  39  Ind.  294; 
Whiteside  v.  Adams,  26  Ind.  250,  252;  Strader  v.  Manville,  ^  Ind.  in;  Clegg 
Evansville,  etc., Co.  v.  Lawrence,  29  Ind.  v.  Fithian,  32  Ind.  90;  Ratlif  v.  Bald- 
622;  Hawkins  v.  McDougal,  126  Ind.  win,  29  Ind.  16;  Goldsberry  v.  Carter, 
539,  25  N.  E.  Rep.  S20.  The  decision  in  28  Ind.  59;  Nutting  v.  Losance,  27  Ind. 
the  case  of  Helphenstine  v.  Vincennes  37;  Skeen  v.  Huntington,  25  Ind.  510; 
National  Bank,  65  Ind.  5S2,  is  a  good  DeArmond  v.  Adams,  25  Ind.  455;  Fra- 
illustration  of  the  true  rule  upon  this  sier  :■.  Hubble,  13  Ind.  432;  Harlan  v. 
subject.  For  analogous  decisions,  see  Edwards,  13  Ind.  430;  Blair  v.  Davis,  9 
Barnes  v.  Roemer,  39  Ind.  5S9;  Torr  Ind.  236.  This  principle  applies  to  a 
v.  Torr,  20  Ind.  11S;  Round  v\  State,  14  case  where  a  party  assumes  to  contest 
Ind.  493.  the  amount  of  damages  assessed  on  de- 

2  One  reason  why  objections  to  pro-  fault.  O'Dell  v.  Carpenter,  71  Ind.  463; 
cess  or  its  service  should  be  made  in  the  Barnes  v.  Bell,  39  Ind.  32S.  In  harmony 
trial  courtis  that  it  may  be  there  amend-  with  the  general  rule  that  only  injured 
ed  in  many  instances,  so  that  it  would  parties  can  complain,  it  is  held  that 
be  unjust  to  permit  a  defendant  to  lie  only  a  party  prejudiced  can  attack  a 
by  and  make  his  objection  available  on  judgment  rendered  on  default.  Knott 
appeal.     State  v.  Davis,  73  Ind.  359.  :•.  Taylor,  99  N.  C.  511,  6  Am.  Rep.  547. 


APPELLATE   PROCEDURE. 


posing  of  the  application  to  be  relieved  from  the  consequences 
of  the  default.  The  ruling  of  the  trial  court  must,  of  course, 
be  sustained  unless  there  was  prejudicial  error.1 

§  330.  Application  to  Trial  Court  where  process  or  service  is 
defective — There  is  some  confusion  in  the  decisions  upon  the 
subject  of  relief  from  judgments  rendered  on  default,  for,  in  one 
case,  at  least,  the  statement  is  made  that  in  all  cases  where  a 
judgment  is  rendered  upon  default  the  defendant  ma}'  appeal 
and  assign  error  without  taking  any  steps  to  be  relieved  in  the 
trial  court.*  It  would  be  a  palpable  violation  of  principle  to 
permit  a  party  over  whose  person  jurisdiction  has  been  obtained 


1  As  to  what  an  applicant  must  show, 
see  Rupert  v.  Martz,  116  Ind.  ~i:  Cen- 
ter Tp.  v.  Hoard.  1 10  Ind.  >7<);  Beatty 
v.  O'Connor,  106  Ind.  81;  Will 
Browning,  96  Ind.  149:  Birch  v.  Frantz, 
77  Ind.  ii)i):  Ammerman  v.  State,  <)S  Ind. 
105;  Jonsson  :•.  Lindstrom.i  14  Ind.  152; 
Lee  v.  Basey,  85  Ind.  543:  Slagle  v. 
Bodmer,  75  Ind.  330:  Williams  v.  Kess- 
ler,  S2  Ind.  1S4;  Lawler  v.  Couch,  So 
Ind.  369;  Clandy  V.  Caldwell,  100  Ind. 
Newcome  v.  Wiggins,  78  End. 306; 
Morris  v.  Buckeye  Engine  Co.,  7S  Ind. 
S6;  Brumbaugh  v.  Stockman,  83  Ind. 
^83;  Rogers  v.  Overton,  87  Ind.  410; 
Nietert  V.  Trentman,  104  Ind.  390; 
Coon  r.Wclhorn.  S3  Ind.  230:  Joerns  V. 
LaNicca,  75  Iowa,  705.  38  N .  W.  Rep. 
129:  Weymouth  v.  Gregg  (Mich).,  41 
N.  W.  Rep.  2  \\.  Jean  v.  Hennessy,  69 
Iowa.  373;  Kreite  V.  Kreite,  93  Ind. 
5S3;  Monroe  V.  Paddock,  75  Ind.  422. 
Tin'  case  of  Nichols  :  .  Nichols.  96  Ind. 
433,  is  very  much  limited  by  Nietert  v. 
Trentman,  supra. 

■  Baldwin  v.  Humphrey,  75  Ind.  153. 
This  statement  i--.  perhaps,  justified  by 
the  remarks  of  the  court  in  Odell  V. 
Carpenter,  71  Ind.  403,  hut  the  cases 
cited  by  no  means  warrant  the  hroad 
statement.  The  case  of  Kyle  V.  Kyle. 
55    Ind.    3S7.  does  not   support    it.     In 


that  case  the  point  decided  is  exhibited 
by  this  language  of  the  opinion  :     "  But 

the  more  recent    ride    is.  that   where  the 

court  below  has  rendered  judgment 
against  a  party  without  having  acquired 
jurisdiction  over  him.  he  not  having 
appeared  to  the  action,  he  may  at  once 
appeal  to  the  Supreme  Court,  without 
having  applied  to  the  court  below  to  set 
the  judgment  aside."  The  case  of 
Strader  v.  Manville,  33  Ind.  1 1 1.  decides 
that  where  there  is  no  cause  of  action 
the  question  may  be  first  made  on  ap- 
peal, and  so  does  Wright  :■.  Norris,  40 
Ind.  247.  Cochnower  v.  Cochnower, 
27  Ind.  253,  asserts  that  where  there  is 
no  process  there  is  no  jurisdiction  of 
the  person,  and  that  the.  question  may 
be  made  on  appeal.  It  is  expressly  said 
that  the  decision  is  not  in  conflict  with 
Blair  v.  Davis.  ,,  Ind.  236,  Harlan  :\ 
Edwards,  13  Ind.  430.  or  Cincinnati, 
etc..  R.  R.  Co.  :•.  Calvert,'  13  Ind.  4S9. 
Abdill  v.  Abdill,  26  Ind.  2S7,  applies 
only  to  infant  defendants.  B-ristor  v. 
Galvin,  62  Ind.  352,  decides  that  where 
there  is  no  jurisdiction  of  the  person 
because  no  service  of  process,  the  ques- 
tion may  be  first  made  on  appeal.  It 
is  quite  clear  that  no  one  of  these  cases 
goes  to  the  extent  asserted  in  Baldwin 
v.  I  lumphrey,  supra. 


THE   ASSIGNMENT  OF  ERRORS.  283 

to  assign  as  error  a  ruling  unchallenged  in  the  trial  court,  al- 
though, if  there  appropriately  questioned,  it  might  be  available 
on  appeal.  To  permit  a  party  who  suffers  a  default  in  a  case  where 
there  is  jurisdiction  of  the  subject  and  of  the  person  to  make 
an  original  objection  to  process  on  appeal,  would  be  unjust  to 
the  plaintiff  and  lead  to  mischievous  results.  A  defendant  who 
suffers  a  default  would  be  in  a  much  better  situation  than  one 
who  makes  an  active  defense  if  such  were  the  rule.  A  de- 
fendant desirous  of  delay  and  of  vexing  his  adversary  would,  it 
is  obvious,  reap  unfair  advantage  from  such  a  doctrine.  Strong 
and  satisfactory  arguments  ma}-  be  readily  arrayed  against  the 
doctrine,  but  not  one  of  plausibility,  much  less  of  real  strength, 
in  its  favor.1 

§  331.  The  difference  between  cases  where  there  is  no  Jurisdiction 
and  cases  where  Notice  is  defective — The  confusion  which  some 
of  the  cases  have  created  is  due  to  the  failure  to  discriminate 
between  instances  where  there  is  no  jurisdiction  of  the  person 
because  no  process  or  no  service,  and  cases  where  there  is  pro- 
cess and  service  but  some  defect  or  irregularitv.  There  is,  as 
has  been  suggested,  a  clear  and  well  defined  distinction  be- 
tween the  two  classes  of  cases,  and  the  fundamental  principles 
of  procedure  forbid  the  confounding  of  the  two  classes  for  the 
purpose  of  bringing  them  under  one  general  rule.  It  is  one 
thing  to  frame  a  rule  for  a  case  where  there  is  no  jurisdiction 
of  the  person  and  quite  another  to  frame  a  rule  for  a  case  where 
there  is  jurisdiction,  although  an  error  subsequentlv  intervenes. 
The  distinction  is,  indeed,  recognized  in  the  verv  case  which 
seems  to  deny  it,  for  it  is  there  held  that  where  there  is  service 
of  process  no  question  as-to  the  amount  of  the  recoverv  can  be 
first  made  on  appeal.2 

1  The  case  of  Baldwin  v.  Humphrey,  diction  still  there  may  he  an  attack  upon 

75  Ind.  153,  is  cited  in  Old  v.  Mohler,  122  the    judgment  without  any  prior    pro- 

Ind.  594.  597,  in  support  of  the  propo-  ceedings  in  the  trial  court.     That  state- 

sition  that  where  there  is  an  entire  want  ment  does  not  express  the  law. 

of  a  cause  of  action,  the  complaint  may  2  Baldwin  v.  Humphrey,  75  Ind.   153, 

be    first    assailed    on    appeal,    although  This  distinction   was   fully   recognized 

there  has  been  a  default.     This  is,  how-  and  enforced  in  Barnes  :•.  Bell,  39  Ind, 

ever,  very  far  from  approving  the  state-  32S.  where  the  case  of  Skeen   v.   Hunt- 

ment  that   even  though  there  is  juris-  ington,  25    Ind.    510.    is    approved.     In 


284 


APPELLATE  PROCEDURE. 


§  332.  Cases  where  there  is  no  Service — There  is  reason  for 
holding  that  where  the  record  shows  that  there  was  no  service 
of  process  there  can  be  no  valid  judgment  and  that  the  ques- 
tion may  first  be  presented  on  appeal.1  In  so  far,  therefore, 
as  our  cases  hold  that  such  a  question  may  first  be  made  in  the 
appellate  court,  they  can  not  be  said  to  be  radically  wrong, 
although  there  is  some  reason  supporting  the  cases  which 
asserted  that  even  where  there  was  no  process  the  objection 
must  first  be  presented  by  an  application  made  to  the  trial  court. 
But  the  rule  that  the  question  may  be  first  made  on  appeal, 
has  been  unduly  extended  in  some  cases,  for  the  rule  has  been 
carried  beyond  the  reason  which  alone  gives  it  even  the  sem- 
blance of  strength.  Where  there  is  process  or  notice  purport- 
ing to  be  such  as  the  law  requires,  and  in  form  and  substance 
such  as  is  required  by  law,  then,  although  the  process  may  be 
defective  an  objection  should  be  made  below.  This  is  in  har- 
mony with  the  closely  resembling  cases,  which  hold  that  where 
there  is  some  notice,  although  defective,  it  is  sufficient  to  sustain 
a  judgment  against  a  collateral  attack.2     It  is    also  in  harmony 


Skeen  v.  Huntington  it  was  said:  "The 
question  of  service  we  can  not  consider 
as  it  lias  been  ruled  by  this  court  that 
where  a  judgment  is  taken  by  default,  a 
motion  to  set  aside  the  default,  or  pro- 
ceedings for  relief  from  the  judgment, 
or  to  review,  it  must  precede  an  appeal." 
In  support  of  this  statement  the  court 
cited:  Blair  v.  Davis,  9  Ind.  236;  Har- 
lan v.  Edwards,  13  Ind.  430;  FYasicr  v. 
Hubble,  13  Ind.  432;  Kir  by  v.  Robbins, 
13  Ind.  470.  Sec,  also,  Yancey  v.  Tet- 
er,  39  Ind.  305;  Gray  r.'.  Dickey,  20  Ind. 
See,  also,  Searle   :•.   Whipperman, 

79  Ind-  l- 1- 

1  Rany    :•.    Governor,   4     Blackf.     2; 


tor  v.  Galvin,  62  Ind.  $^2;  Crane  V.  Kim- 
mer,77  Ind.  215;  Strader  :•.  Manville,33 
Ind.  in;  Searle  V.  Whipperman.  79 
Ind.  424,  426.  See,  generally,  Wheeler 
v.  Edinger,  11  Iowa,  409;  McCranev  V. 
Childs,  n  Iowa,  54;  Winslow  v.  An- 
derson, 3  Dev.  &  Bat.  (L.)  9,  32  Am. 
Dec.  651;  Drew  v.  Claypool,  61  Mich. 
233,  28  N.  W.  Rep.  7S;  Miller  v.  Bur- 
ton, 121  Ind.  22 4,  23  N.  E.  Rep.  S4. 

11  McAlpine  v.  Sweetser,  76  Ind.  78; 
Muncey  v .  Joest,  74  Ind.  409;  Hume  v. 
Conduitt,  76  Ind.  598;  Stout  v.  Woods. 
79  Ind.  10S;  Oppenheim  v.  Pittsburgh, 
etc.,  Co.,  85  Ind.  471;  Million  z/.Board, 
S9  Ind.  5,  12;    McCormick  v.   Webster, 


Miller  v.  Bottorf,  6  Black!'.  30;   Klinger     S9  Ind.  105;  Brown  t\Goble,97  Ind.  86, 


Brownell,  5  Blackf. 332;  Miles  t>.  Bu- 
chanan, 36  Ind.  490;  New  Albany,  etc., 
Co.  i>.  Welsh,  v  Ind.  1711:  L'oehnower 
v.  Cochnower,  27  Ind.  253;  Cole  v. 
All. mi.  ;i  Ind.  122:  Brooks  v.  Allen,  62 
Ind.  401,  403;  Abdill  v.  Abdill.  26  Ind. 
287;    Ilouk  v.  Barthold,  73  Ind.  21;  Bris- 


S9;  Jackson  v.  State,  104  Ind.  516; 
Kleyla  v.  Haskett,  112  Ind.  515;  Hack- 
ed v.  State,  113  Ind.  532;  Lake  Shore, 
etc.,  Co.  v.  Cincinnati,  etc.,  Co.,  116 
Ind.  578;  Bass  v.  City  of  Port  Wayne, 
121  Ind.  389;  Morrow  v.  Weed,  4  Iowa, 
77;     Bonsall    v.     Isett,     14    Iowa,    309; 


THE   ASSIGNMENT  OF  ERRORS. 


285 


with  the  rule  that  where  there  is  process  and  service,  objections 
not  made  below  to  the  form  of  the  judgment  or  the  amount  of 
recovery  can  not  be  successfully  specified  as  error  on  appeal.1 
Some  of  the  cases  go  beyond  the  line  of  principle,  and  also 
oppose  authority  in  holding  that,  although  there  is  some  notice 
and  some  service,  the  question  of  the  sufficiency  of  the  notice 
or  service  may  be  first  made  on  appeal.2  This  ruling  violates 
many  of  the  principles  we  have  stated,  and  contravenes  many 
of  the  authorities  referred  to,  and  it  also  conflicts  with  the  settled 
doctrine  that  the  authority  to  judge  at  all  is  jurisdiction,  whether 
the  judgment  be  right  or  wrong.  It  also  conflicts  with  the  ac- 
cepted doctrine  that  where  there  is  process  sufficient  upon  its  face 
to  invoke  the  exercise  of  judgment  upon  its  sufficiency,  the  judg- 
ment is  effective,  for,  though  it  may  be  erroneous,  it  is  not  void.3 


Ballinger  v.  Tarbell,  16  Iowa,  491; 
Hendrick  v.  Whittemore,  105  Mass.  23; 
Cook  v.  Darling,  iS  Pick.  393;  Finner- 
an  v.  Leonard,  7  Allen,  54;  Wright 
v.  Marsh,  2  Greene  (Iowa),  94;  Paine 
f.  Mooreland,  15  Ohio,  435;  Borden  v. 
State,  6  Eng.  (Ark.)  519;  Sheldon  v. 
Wright,  5  N.Y.497;  Delaney  v.  Gault, 
30  Pa.  St.  63;  Callen  v.  Ellison,  13  Ohio 
St.  446;  People  v.  Hagar,  52  Cal.  171. 

1  Searle  v.  Whipperman,  79  Ind.  424. 
This  case  very  clearly  shows  the  fallacy 
of  the  reasoning  in  Berkshire  v.  Young, 
45  Ind.  461;  Davidson  v.  King,  49  Ind. 
338  and  Emmett  -'.  Yandes,  60  Ind.  54S, 
and,  beyond  cavil,  establishes  the  true 
doctrine.  See,  generally,  Woods  v. 
Brown,  93  Ind.  164. 

2  Kyle  v.  Kyle,  55  Ind.  387.  In  stating 
the  general  rule  that  where  there  is  no 
jurisdiction  of  the  person  there  can  be 
no  judgment,  the  opinion  in  the  case 
cited  does  not  radically  depart  from 
principle,  but  it  does  depart  from 
principle  in  deciding  that  where  there 
is  a  legal  notice  and  service  by  an  unau- 
thorized person,  the  question  ma}'  be 
first  made  on  appeal.  It  seems  clear 
that  there  is,  in  such  a  case,  a  question 


upon  which  the  trial  court  has  authority 
to  pass  and  which  it  must  decide, and  that 
the  utmost  that  can  be  said  is  that  as  an 
erroneous  decision  it  is  reviewable  upon 
appeal  if  objection  is  first  made  below. 
Catterlin  v.  City  of  Frankfort,  S7   Ind. 
45;  Board  of  Commrs.,  etc.,  v.  Hall.  70 
Ind.  469.     If  the  notice  is  such  as  to  in- 
form the  party  that  there  is  an  action 
pending,  it  would  seem  that  he  ought  to 
object  to  its  sufficiency  in  the  trial  court. 
Nysewander  v.  Lowman,   124  Ind.  5S4; 
Quarl  v.  Abbett,  102  Ind.  233;  Goodell 
r.  Starr,  127  Ind.  19S.     See,  generally, 
Pickering  v.  State,  106  Ind.  22S;   Argo 
v.  Barthand,   80  Ind.    63;     Ricketts   v. 
Spraker,  77  Ind.  371;  Prezinger  v.  Har- 
ness, 114  Ind.  491;  Johnson  v..  State,  116 
Ind.  374;  Otis  v.  DeBoer,  116  Ind.  531. 
3  Knox  County  :•.  Aspinwall,  21  How. 
(U.  S.)  537;  Coloma  v.  Eaves,  92  U.S. 
4S4;   Douglass  Co.  v.  Bolles,  94  U.  S. 
104;  Bissell  v.  City  of  Jeffersonville.  24 
How.  (U.  S.)  2S7;   Evansville,  etc.,  Co. 
v.  City  of  Evansville, 15  Ind.  395;  Cauld- 
well  v.  Curry,  93  Ind.    363;    Town    of 
Cicero    v.    Williamson,    91    Ind.     541; 
Mullikin  v.  City   of    Bloomington.    72 
Ind. 161 ;  Jackson  v.  State,  104  Ind. 516; 


•28(3  APPELLATE   PROCEDURE. 

We  conclude  that,  upon  principle  as  well  as  upon  the  better 
reasoned  cases,  the  true  rule  is,  that  where  there  is  process  and 
service  not  absolutely  void  but  voidable,  only,  the  objection  to 
its  sufficiency  can  not  be  first  made  by  a  specification  of  error 
in  the  appellate  tribunal.1 

§  333  Writs  running  beyond  the  Term — It  is  upon  the  doc- 
trine that  a  writ  running  beyond  a  term  is  absolutely  void  that 
the  ruling  can  be  sustained  which  declares  that  where  there  is 
such  a  writ  the  objection  may  be  first  made  on  appeal.2  The 
decided  cases  warrant  the  conclusion  that  a  writ  made  return- 
able bevond  the  term  is  void.:i  Upon  the  theory  that  such 
a  writ  is  utterly  void  it  may,  with  reason,  be  affirmed  that  there 
is  no  jurisdiction  of  the  person,  since  the  court  can  pronounce 
upon  the  face  of  the  record  that  there  is  no  process,  inasmuch 
as  a  void  writ  is,  in  legal  contemplation,  no  writ  at  all.  In 
holding  that  where  there  is  no  writ  the  objection  may  be  first 
made  on  appeal,  the  rule  that  where  there  is  a  writ,  although  a 
defective  one,  the  objection  must  first  be  made  in  the  trial  court, 
is  not  impinged,  much  less  violated,  since  it  is  quite  clear  that 
there  is  an  essential  difference  between  cases  where  there  is  a 
writ  that  might  be  quashed  on  due  and  seasonable  objection  and 
cases  where  there  is  absolutely  no  process. 

i  834.  Judgments  by  Default — To  hold  that  a  defendant  may 
appeal  directly  from  a  judgment  rendered  against  him  by  de- 

.Muncey  v.  Joest,  74  Ind.  409;  Platter  v.  authorities  differ  as  to  tin-  effect  of  a 

Board,  103  Ind.  360;  Jackson  v.  Smith,  recital  in    the   record    showing   service, 

120    Ind.   520;     McEneney    v.  Town   of  some   of  the   courts    holding    it   prima 

Sullivan,  125  Ind.  407,  412;    Henline  v.  facie  sufficient.     Winston  v.  Miller,  20 

People,  Si   111.  zUy.   Chicago,  etc., Co.  v .  Miss.  550;    Maples  v.  Mackey,  15  Hun. 

Chamberlain,  S4    111.  333:     Roderigras  533.     Our  cases  are  to  the  contrary. 

LSI   River,  etc..  Co.,  63  N.    Y.   460,  3  Shirley    V.    Hagar,    3    Blackf.     225; 

20  Am.  Rep.  555;  Porter  v.  Purdy,  29  Crocker  v.  Dunkin,  6  Blackf.  535;   Ca- 

N.  Y.  106;     Cooper    v.    Sunderland,    3  rev    v.    Butler,    11     Ind.    391;     Will    if. 

Clarke  (Iowa),  114;    Vail    v.   Owen,    19  Whitney.  15  Ind.  194;    Rigsbee  V.  Bow- 

•  Barb.  22;  Youngman  v,  Elmira,  etc.,  65  ler,  17  Ind.  167;   Atkinson  v.  Taylor,  2 

Pa    Si    278.  Wills.  117;    Parsons  v.  Loyd,  3  WTills. 

1  Lawrence  V.    Howell,   52    Iowa.  62;  341;    Shirley  :\ Wright.  Salk.  700;  Reu- 
Haughey  v.Wilson,  i  Hilt  (N.Y.)  259.  bel  v.  Preston,   5    East,    291;    Burk    v. 

2  Briggs  v.  Sneghan.  45  Ind.  14.   The  Barnard,  4  Johns.  309. 


THE   ASSIGNMENT  OF  ERRORS.  287 

fault  and  attack  the  validity  of  the  judgment  in  the  assignment 
of  errors  for  the  first  time  in  a  case  where  there  is  process  and 
service  not  absolutely  void,  or  in  a  case  where  he  has  appeared, 
would  not  only  violate  the  principles  we  have  stated,  but  it 
would  also  involve  the  repudiation  of  a  number  of  well  consid- 
ered and  strongly  reasoned  cases.  The  cases  to  which  we  here 
refer  are,  it  is  true,  cases  where  the  suit  was  one  to  review  a 
judgment  ;x  but  the  fact  that  the  question  arose  on  a  bill  to  re- 
view does  not  affect  the  principle,  for  the  principle  upon  which 
the  court  proceeds  in  reviewing  a  judgment  is,  so  far,  at  least, 
as  concerns  this  phase  of  the  subject,  essentially  the  same  as  in 
cases  of  appeals.2 

§  335.  Failure  to  obey  a  Rule  to  Plead — In  what  has  been  said 
respecting  assignments  of  error  in  cases  where  judgments  were 
taken  by  default  we  had  mainly  in  mind  and  referred  to  cases 
where  the  default  was  taken  upon  a  failure  to  appear  and  de- 
fend, but  there  are,  as  is  well  known,  many  other  cases  where 
a  judgment  may  be  taken  upon  default,  that  is,  upon  call  of  the 
party  who  has  failed  to  do  what  the  law  requires  of  him  or  who 
has  failed  to  obey  an  order  or  rule  of  court  after  having  appeared 
to  the  action.3  Where  there  has  been  an  appearance,  and  juris- 
diction of  the  person  is  thus  obtained,  the  general  rule  is  that 
all  questions,  except  those  special  ones  which  may  first  be  made 

'Baker    v.    Ludlam,     11S    Ind.    S7;  ers  Ins.  Co.   v.  Carpenter,  85  Ind.  350; 

Shoaf  v.  Joray,  S6  Ind.  70;     Searle  v.  Klebar  v.  Town  of  Corydon,  So    Ind. 

Whipperman,  79    Ind.  424;    Tachau  v.  95;   Davis  7'.  Binford,  70  Ind.  44. 

Fiedeldey,  Si  Ind.  54;   Hardy  v.  Miller,  3  Where  pleadings  are  on  file  a  judg- 

S9  Ind.  440.  ment  by  default  can  only   be  taken   in 

2  Indianapolis     Mutual    Ins.    Co.    v.  the  event  that  there  is  a  failure  or  re- 

Routledge,  7  Ind.  25;  Barnes  v.  Wright,  fusal   to  obey   a   rule  or  an   order,  for 

39  Ind.  293;  Barnes  v.  Bell,  39  Ind.  32S;  where   pleadings   are   on   file,  the  case 

Hardy  v.  Chipman,  54  Ind.  591;   Rich-  should  be  called  for  trial.     Firestone  v. 

ardson  v.  Howk,  45  Ind.  451;  Dunklev.  Firestone,  78  Ind.  534;  Lover1.  Hall,  76 

Elston,  71  Ind.  585;   Rice  -'.Turner,  72  Ind.  326;  Kellenberger  :.  Perrin,  4(1 1  nd. 

Ind.  559;   American  Ins.  Co.  v. Gibson,  2S2;   Norris  v.  Dodge,  23  Ind.  190;  Kir- 

104    Ind.    336;     Rigler    v.    Rigler,    120  by    V.    Holmes,   6   Ind.    33;     Ellison    v. 

Ind.  431;  Gates  v.   Scott,  123  Ind.  459.  Nickols,    1    Ind.    477;   Maddox   v.   Pul- 

A  party  can  not  prosecute    an    appeal  Ham,  5  Blackf.  205;     Harris  v.  Muskin- 

and    also    maintain    a    bill    of    review,  gum.  etc.,  Co.,  4  Blackf.  267,  S.  C.  29 

Buscher  v.  Knapp,  107  Ind.  340;  Trad-  Am.  Dec.  372. 


288  APPELLATE  PROCEDURE. 

on  appeal,   must  be  first   appropriately   presented   to  the  trial 
court.1 

>:  336.  Rulings  on  Pleadings  Generally — In  considering  speci- 
fications of  error  founded  on  rulings  upon  the  pleadings  it  is 
quite  as  well,  perhaps,  to  begin  with  motions  addressed  to  the 
pleadings,  such  as  a  motion  to  compel  the  party  to  tile  an  ab- 
stract of  title,  to  file  a  bill  of  particulars,  to  make  his  pleading 
more  definite  and  certain,  or  the  like,  since  such  motions  pre- 
cede, in  strict  order,  demurrers,  pleas,  or  answers.2  A  motion 
of  the  class  mentioned  is  a  special  motion,  and,  as  a  general 
rule,  should  specify  the  grounds  upon  which  it  is  founded.3 
Where  the  motion  does  specify  the  grounds  there  is  neither 
necessity  nor  propriety  in  repeating  them  on  appeal.  If  the 
grounds  are  well  specified  below  a  specification  indicating  with 
clearness  and  certainty  the  particular  motion  on  which  the  rul- 
ing was  made  is  all  that  is  proper.  If  this  motion  was  not  suf- 
ficiently specific  as  originally  filed  its  deficiencies  can  not  be 
supplied  on  appeal. 

§  337.  Rulings  on  Demurrers — As  causes  for  demurrer  must 
be  properly  stated  in  the  demurrer  itself,  it  is  only  necessary 
that  the  specifications  in  the  assignment  of  errors  should  desig- 
nate with  clearness  and  certainty  the  particular  ruling  of  which 

1  Coffin  v.  Evansville,  etc.,  Co.,  7  Ind.  436.  where  it  is  held  that  the  record 
413.  must    show    the   grounds   of  a  motion 

2  Hart  v.  Walker,  77  Ind.  331.  to  strike  out  part   of  a  pleading.     See, 

3  City  of  New  Albany  v.  White,  generally,  Ratliff  v.  Stretch,  117  Ind. 
100  Ind.  2c6;  Louisville,  etc.,  Co.  v.  526,  20  N.  E.  Rep.  438;  Fordyce  v .  Mer- 
Crunk,  119  Ind.  542;  Greenman  v.  rill,  49  Ark.  277, 5  S.W.  Rep.  329;  Hurst 
Cohee,  61  Ind.  201;  Cobble  v.  Tom-  v.  Ash  Grove.  96  Mo.  168,  9  S.W.  Rep. 
linson,  50  Ind.  550:  Bundy  v.  Pool.  82  631.  What  the  motion  to  make  more  cer- 
[nd.  502!;  Gray  v.  Stiver.  24  End.  174;  tain  should  point  out.  Fischer  v.  Coons 
Kent  v.  Lawson,  12  Ind.  675;  Lynch  v.  26  Neb.  400,  42  N.  W.  Rep.  417.  The 
Jennings,  43  Ind.  27');  Heard  v.  State,  remedy  for  uncertainty  is  by  motion,not 
57  Ind.  8;  Hancock  v.  Ileaton.  53  Ind.  demurrer.  Moorman  v.  Shockney,  95 
111:  Hablichtel  v.  Yambert,  75  Iowa.  Ind.  SS;  Betts  v.  Quick,  114  Ind.  165; 
539.39N.W.  Rep. 877;  Barney  r.  Hart-  Thomas  v.  Merry,  113  Ind.  83;  Nowlin 
ford.  73  Wis,  95,40  N.W.  Rep.  ^Si.  As  W.Whipple, 89 Ind. 490;  Pittsburgh,  etc., 
illustrating  the  general  rule  may  be  cited  Co.  v.  Hixon,  no  Ind.  225;  Watt  v, 
the  case  of   Walker   v.  Steele,   121    Ind.  Pitman,  125    Ind.  168. 


TIN-:   ASSIGNMENT  OF  ERRORS.  289 

a  review  is  sought.  Where  the  demurrer  is  a  distributive  one, 
that  is,  one  addressed  to  each  paragraph  of  a  complaint,  an- 
swer, or  reply,  the  specifications  should  be  directed  to  the  rul- 
ing on  each  paragraph.  The  general  principle  which  underlies 
the  entire  system  of  procedure  requires  that  where  there  are 
several  rulings  each  should  be  separately  challenged.  This  is 
in  consonance  with  the  accepted  doctrine  that  where  there  is  a 
joint  or  undistributed  objection  to  several  pleadings  the  objec- 
tion will  fail  unless  the  objection  is  valid  as  to  all  the  pleadings 
to  which  it  is  addressed.  The  safe  rule,  as  well  as  the  logical 
rule,  is  to  specify  errors  distributively  upon  each  paragraph  on 
which  a  ruling  is  made.1 

S  338.  Interrogatories  to  Parties — Interrogatories  to  parties  are 
parts  of  the  pleading  and  are  not  matters  connected  with  the 
trial.  As  rulings  on  such  interrogatories  are  rulings  on  the 
pleadings,  such  rulings  should  be  specified  as  independent  errors, 
for  they  are  not  embraced  in  a  specification  alleging  error  in 
overruling  a  motion  for  a  new  trial.  The  practice  of  propound- 
ing interrogatories  is  borrowed  from  the  old  chancery  svstem. 
and  is,  in  effect,  the  statutory  substitute  for  the  bill  of  discovery. 
In  substance,  there  is  no  essential  difference  between  the  chan- 
cery and  statutory  mode  of  procedure.2 

£  339.  Habeas  Corpus  Cases — Instances  of  a  class  different  from 
those  growing  out  of  ordinary  civil  actions  but  resting  upon  the 
same  general  principle  are  supplied  by  habeas  corf  us  cases.  In 
that  class  of  cases  it  is  held  that  while  there  must  be  a  specific 
assignment  of  errors  it  is,  nevertheless,  sufficient  if  the  specifi- 
cations of  error  point  out  with  clearness  and  designate  with 
certainty  the  ruling  made  in  the  trial  court.  It  will  be  sufficient 
although  thev  do  not  go  into  minute  details.  To  illustrate  our 
meaning  and  to  prevent  a  broader  construction  than  we  desire 
our  words  to  receive,  we  say  that  where  the  appropriate  excep- 

1  Bolin  r.  Simmonds,  Si  Ind.  92;  Hig-  is  closed.  Sherman  v.  Hogland.  73 
gins  v.  Kendall.  73   Ind.  522.  Ind.  472.     See,   generally.  Wheeler    :  . 

2  Gates  v.  Thayer,  93  Ind.  156;  Reed  Reitz.  92  Ind.  379;  Fitch  -'.  Citizens' 
V.  Spayde,  56  Ind.  394.  Interrogatories  National  Bank,  97  Ind.  211;  Hill  :■. 
are  reqnired  to  he  tiled  with  the  plead-  Nisbet,  100  Ind.  341. 

ings,  that  is,  prior  to  the  time   the  issue 


290  APPELLATE    PROCEDURE. 

tion  is  reserved  below  it  presents  the  question  when  followed 
by  a  proper  specification  of  error.1  A  petition  for  a  writ  of 
habeas  corpus  can  not  be  first  assailed  by  the  assignment  of 
errors,  for  the  reason  that  the  proceeding  is  a  peculiar  one  and 
is  governed  by  rules  unlike  those  which  prevail  in  ordinary 
civil  actions,2  but  its  peculiarities  do  not  extend  so  far  as  to 
render  it  necessary  to  repeat  in  the  specifications  of  error  the 
points  involved  in  the  exceptions  taken  on  the  trial.  If  the  ex- 
ceptions there  taken  are  properly  presented,  all  subsidiary  ques- 
tions are  involved  in  the  rulings  upon  them,  and  by  properly 
assigning  such  rulings  for  error,  all  subsidiary  questions  em- 
braced in  them  are  properly  brought  before  the  appellate  tri- 
bunal for  review. 

§  340.  Identifying  the  Ruling  Complained  of — In  specifying  the 
ruling  upon  the  pleading  which  it  is  the  design  of  the  party  to 
present  to  the  appellate  tribunal  for  review,  the  particular 
ruling  must  be  definitely  and  appropriately  designated.  It  will 
not  do  to  designate  any  other  ruling  than  the  particular  one 
which  the  party  desires  reviewed.3  This  rule  is  of  important 
influence  in  cases  where  the  party  desires  to  present  a  question 
upon  the  failure  of  the  trial  court  to  carry  back  a  demurrer  to 
one  pleading  and  sustain  it  to  an  antecedent  pleading,  as,  for 
instance,  in  the  case  of  a  failure  to  carry  back  to  the  complaint 
a  demurrer  to  the  answer.  In  such  a  case  it  is  not  sufficient  to 
specify  as  error  that  the  court  erred  in  sustaining  the  demurrer 
to  the  answer,  for  the  law  requires  a  specification  of  the  partic- 
ular ruling.4 

1  McGlennan  v.  Margowski,  90  Ind.  complained  of,  and  the  specification  of 

150.     A  motion  to  quash  the  writ  tests  error  must  clearly  designate  the  specific 

the  sufficiency  of  the   petition,  and,  in  ruling.     Thus,  a  ruling  upon  a  motion 

accordance  with  the  principle  we  have  for  new  trial  generally  will  not  support 

stated,    a    specification   that   the    court  a  specification  assigning  as  error  a  rul- 

erred  in  sustaining  or  in  overruling  the  ing  upon  a  motion  for  a  new  trial  upon 

motion  to  quash   will   properly  present  an  issue  made  upon  a  counter-claim  or 

the  question  on  appeal.  cross-complaint.     Klinger  v.  Smith,  29 

3  McClennan  v.  Margowski,  90  Ind.  N.  E.  Rep.  364. 
150;     Baker  v.    Gordon,    23    Ind.   204;         4  Peters  v.  Banta,  120  Ind.  416;   Hunt- 
Cunningham    f.  Thomas,  25  Ind.  171;  er  v.  Fitzmaurice,  102  Ind.  449;   Stock- 
Milligan  v.  State,  97  Ind.  355.  well    z\  State,    101    Ind.    1;    Williams 

3  State  v.  Weaver.  123  Ind.  512.  The  v.  Stevenson,  103  Ind.  243.  These  de- 
record  must  show  the  particular  ruling  cisions  do  not  impinge   upon  the  rule 


THE  ASSIGNMENT  OF  ERRORS.  29J 

§341.  Objections  to  the  mode  of  Impaneling  the  Jury — Objec- 
tions to  the  mode  of  impaneling  the  jury  must  be  made  in  the 
trial  court  in  order  to  form  the  basis  of  a  specification  in  the 
assignment  of  errors.1  This  rule  is  strictly  analogous  to  that 
established  by  the  later  cases  wherein  it  is  held  that  objections 
to  the  appointment  of  a  special  judge  must  be  opportunely  pre- 
sented to  the  trial  court.2  It  is  evident  that  no  other  rule  can 
be  sanctioned  without  a  radical  departure  from  principle,  al- 
though some  of  the  earlier  cases  indicate  a  different  view.  The 
general  doctrine  of  waiver  is  incidentally  involved  in  questions 
respecting  the  impaneling  of  juries,  as  it  is,  indeed,  in  very 
many  phases  of  procedure,  for  a  failure  to  seasonably  and  ap- 
propriately object  is  a  waiver  which  the  parties  are  not  always 
at  liberty  to  retract.3 

§  342.  Rulings  on  Verdicts — The  line  between  appellate  pro- 
cedure and  trial  court  practice,  as  in  many  other  instances,  is  a 
very  thin  and  indistinct  one  in  respect  to  the  method  of  ques- 
tioning verdicts,  and  it  is  not  always  easy  to  say  where  the 
subject  properly  belongs.      It  can  not,  in  truth,  be  said  that  the 

that  a  bad  answer  is  good  enough  for  a  Harper  v.  Jacobs,   51   Mo.  296;  Terri- 

bad  complaint,  for  they  are  not  directed  tory  v.  Bryson  9  Mont.  32,  22  Pac.  Rep. 

to   that   phase   of  the  subject.     A  de-  147. 

fendant  may,  of  course,  parry   an    at-         3  Henny  Buggy  Co.  v.  Patt,  73  Iowa, 

tack  upon  his  answer  by  showing  the  767,  35  N.  W.  Rep.  587;   Stevenson  v . 

insufficiency  of  the  complaint.  Felton,  99  N.   C.   58,5    S.  E.  Rep.  399; 

1  Dolan  v.  State,  122  Ind.  141;  Doo-  Cole  v.  Terrell,  71  Tex.  549,9  S.  W. 
little  v .  State,  93  Ind.  272;  Vanvalken-  Rep.  66S.  Demand  for  jury  should  he 
berg  v.  Vanvalkenberg,  90  Ind.  433.  seasonably  made.     Thorp  v.  Reilv.    57 

2  Cargar  v.  Tee,  119  Ind.  536;  Bowen  N.  Y.  Sup.  Ct.  589,  8  N.  Y.  Sup.  493; 
v .  Swander.  121  Ind.  164;  Schlungger  v.  Sternberger  v.  Bernheimer  (N.  Y.),  24 
State,  113  Ind.  295;  Bartley  v.  Phillips,  N.E.Rep.311.  Upon  the  general  sub- 
114  Ind.  189;  Greenwood  v.  State,  116  ject  of  demanding  a  jury,  see,  Gleaves 
Ind.  4S5;  Littleton  v.  Smith,  119  Ind.  v.  Davidson,  85  Tenn.  380,3  S.W.  Rep. 
230;  Hayes  v.  Sykes,  120  Ind.  1S0;  348;  East  Tennessee,  etc.,  Co.  v.  Mar- 
State  v.  Whitney,  7  Oregon,  386.  See,  tin,  S5  Tenn.  134,  2  S.  W.  Rep.  381; 
generally,  Fassinow  v.  State,  89  Ind.  Hyde  v.  Redding,  74  Cal.  493,  16  Pac. 
235;  Kennedy  v.  State,  53  Ind.  542;  Rep.  3S0;  Fostor  v.  Hinson,  76  Iowa, 
Barnes  v.  State,  2S  Ind.  82;  Walter  v.  714.  39  N.W.  Rep.  682;  hi  re  Hooker's 
Walter,  117  Ind.  247;  Hyatt  v.  Hyatt,  Estate,  75  Iowa.  377,  39  N.W.  Rep.'  ;j 
^  Ind.  309;  Rudd  t\  Woolfolk.  4  Bush.  See  Special  Findings  and  Special  Ver- 
555;    Grant    v.    Holmes,   75    Mo.    109;  diets. 


APPELLATE  PROCEDURE. 

subject  can  be  fully  understood  without  blending  the  rules  which 
obtain  in  the  trial  court  and  in  the  appellate  tribunal,  for  the 
attack  in  the  trial  court  is  the  basis  of  the  specifications  in  the 
assignment  of  errors.  It  is  for  this  reason  that  it  is  proper  to 
speak,  although  not  at  length,  of  the  objections  which  may  be 
urged  against  a  verdict,  as  well  as  of  the  rule  by  which  a  ver- 
dict is  to  be  interpreted  or  construed.  Immaterial  defects,  or 
unimportant  inaccuracies,  will  not  prevail  to  overthrow  a  ver- 
dict, either  general  or  special  ;  on  the  contrary,  if  the  verdict  is 
so  full  and  intelligible  as  to  support  a  judgment  it  will  be  up- 
held.1 A  verdict  must  receive  a  liberal  construction  and  all  parts 
of  it,2  at  least  in  so  far  as  they  relate  to  the  same  subject,  must 
be  taken  into  consideration  ;  to  consider  it  in  fragmentary  parts 
would,  it  is  evident,  violate  the  familiar  rule  applicable  to  plead- 
ings, instructions  and  the  like,  since  that  well-known  rule  forbids 
dissection  and  attacks  in  detail.  If  the  verdict  is  sufficiently 
certain  as  against  the  party  who  assumes  to  complain  his  com- 
plaint will  not  be  heeded.3  In  strictness,  a  motion  which  as- 
sumes to  challenge  the  sufficiency  of  a  verdict  should  specify 
the  defects  which  are  assumed  to  exist.4  It  is  probably  true 
that  some  of  the  cases  indicate  that  a  different  course  may  be 
safely  pursued,  but  the  object  of  the  code  is  to  secure  a  clear 
specification  of  the  grounds  upon  which  a  party  proceeds  and 
to  fully  present  those  objections  to  the  trial  court,  so  that  to 
maintain  harmony  and  carry  into  effect  the  spirit  of  the  code  it 
should  be  held  that  objections  must  be  specific.  Another  reason 
supports  this  conclusion  and  that  is  that  the  ruling  on  a  motion 
should  be  specified  in  the  assignment  of  errors,  and  not  the 
particular  grounds  upon  which  the  motion  is  based. 

§  343.    Specifications  in  cases  of  rulings  on  Verdicts — Indepen- 

'  Beggs  v.  Stati.  [22  Ind.54,  23  N.E.  29  Ind. 51;   Marcus  v.  State,  26  Ind.  101; 

Rep.   693;    Thames   Loan,  etc.,  Co.  v.  Smith  v.  Jeffries,  25  Ind.  376;  Boxley 

Beville,  100  Ind.  309;  Bonewits  v.  Wy-  r. Collins,  4Blackf.  320;  Moore  v.  Read, 

gant,  75  Ind.  41;  Lentz  v.  Martin.  75  1  Blackf.  177;  State  v.  McNamara,  100 

Ind.  228;   Peed  v.  Brenneman,  72  Ind.  Mo.  100,  13  S.  W.  Rep.  93S. 

288;  Ridenour  v.  Beekman,  68  Ind.  236;  J  Woodard   v.   Davis,    127    Ind.   172; 

Hershman    v.   Hershman,  63  Ind.  451;  Baldwin  v.  Burrows,  95  Ind.  81. 

Merrick  v.  State,  63  Ind.  327;  Breckley  s  Clark  v.  Brown,  70  Ind.  405. 

y.Weghorn,  71  Ind.  497;  Trout -'.West,  4  Deatty  v.  Shirley,  83  Ind.  218. 


THE  ASSIGNMENT  OF  ERRORS.  293 

dent  specifications  of  error  can  not  be  made  upon  verdicts,  for 
there  must  be  some  motion  challenging  them  in  the  trial  court.1 
A  motion  for  a  new  trial  generally  brings  forward  for  review 
all  questions  except  such  as  relate  to  the  form  and  character  of 
a  general  verdict,  but  where  the  form  or  sufficiency  of  a  general 
verdict  is  sought  to  be  questioned,  the  appropriate  motion  ad- 
dressed to  the  verdict  itself,  and  not,  as  a  general  rule,  to  mat- 
ters preceding  or  following  it,  must  be  made  in  the  court  of 
original  jurisdiction.  The  appropriate  motion  is  for  a  venire  de 
novo.2  If  such  a  motion  is  made,3  then,  all  that  need  be  done 
is  to  specify  the  ruling  on  the  motion  in  the  assignment  of  errors. 
A  motion  for  a  venire  de  novo,  it  may  not  be  improper  to  add, 
simply  reaches  defects  apparent  on  the  face  of  the  record.4 

§  344.  Rulings  on  Judgments — Independent  specifications  of 
error  presenting  original  objections  to  a  judgment  or  decree  are, 
as  a  general  rule,  unavailing,  for  the  rule  is  that  objections  to  a 
judgment  or  decree  must  be  presented  to  the  trial  court  and  a 
decision  secured,  or  else  a  decision  asked  and  denied.  Where 
the  proper  steps  have  been  taken  in  the  trial  court  the  specifi- 
cations of  error  must  be  made  upon  the  rulings  of  that  court. 
This  is  in  harmony  with  the  general  doctrine  that,  wherever  it 
is  practicable,  parties  must  give  the  trial  court  a  seasonable  op- 
portunity to  review  its  rulings.  Where  a  judgment  fails  to  fol- 
low the  verdict  the  question  should,  as  a  general  rule,  be  first 
presented  to  the  trial  court.5     It  is  probable  that  there  are  some 

1  Kamerick    v.   Castleman,    29    Mo.  *  Dolan  v.  State,  122  Ind.  141.     The 

App.  65S;  Dockerty  v.  Huston,  125  Ind.  rule  in  this  State  is  different  from  that 

102,  25  N.  E.  Rep.  144.  of  the   common    law,  for,    although    a 

'  Bunnell    v.    Bunnell,    93    Ind.  595;  verdict  does  not  find  upon  all    the  is- 

Carver  v.  Carver,  83  Ind.  36S;  Thayer  sues,  it  is  not  vulnerable  to  an  attack 

v.  Burger,   100  Ind.  262;     Ridenour  v.  by    a    motion     for    a    venire   de    novo. 

Miller,  83  Ind.  208;  Baughan  T'.Baugh-  Board   of  Commissioners   v.  Pearson, 

an,  114  Ind.  73;  Bartlev  v.  Phillips,  114  120  Ind.  42A,  16  Am.  St.  R.  325. 

Ind.  1S9.  5  Berkey.etc.  Co.  v.  Hascall,  123  Ind. 

3  It  must  be  made  before  judgment.  502;   Skaggs  v.  State,  108  Ind.  53;  Scott 

McClintock    v.   Theiss,    74    Ind.    200;  v.  Minneapolis,  etc.,  Co..  42  Minn.  179; 

Deatty  v.  Shirley,  83  Ind.  21S.     Does  Baker  v.  Moor,  S4  Ga.  1S6,  10  S.E.  Rep. 

not  serve  the  purpose  of  a  motion  for  a  737;  Bell  v.  Mansfield  (Ky.),  13  S.  W 

new    trial.     Glantz    v.  City    of  South  Rep.  S38.    In  Scott  v.  Minneapolis,  etc., 

Bend,  106  Ind.  305.  Co.,  supray  it  was  held  that  where  a  judg- 


294  APPELLATE  PROCEDURE. 

exceptions  to  this  general  rule,  but  it  is  certainly  always  safest 
to  present  objections  to  the  trial  court,  for  it  is  very  seldom  in- 
deed that  they  can  be  made  with  success  as  original  questions 
on  appeal. 

§  345.  Mode  of  objecting  to  Judgments — The  mode  of  objecting 
to  a  judgment  often  approved  by  this  court  is  by  a  motion  to 
modify.1  In  many  instances  and  in  a  variety  of  cases  it  has 
been  held  that  such  a  motion  is  necessary  in  order  to  reserve  a 
question  for  review  on  appeal.  Thus,  in  one  case,  it  was  held 
that  where  a  personal  judgment  was  erroneously  rendered  the 
failure  to  make  the  proper  motion  in  the  trial  court  precluded 
the  complaining  party  from  making  the  error  available  by  spec- 
ifying it  in  the  assignment  of  errors.2  So,  where  the  court  goes 
beyond  the  issues,  the  proper  objection  must  be  appropriately 
presented  to  the  trial  court.3  A  case  of  a  different  class,  but 
one  forcibly  illustrating  the  rule,  is  that  wherein  it  was  held 
that  in  order  to  present  a  question  upon  a  judgment  containing 
an  order  revoking  the  license  of  a  liquor  seller,  an  objection 
must  be  properly  made  in  the  court  of  original  jurisdiction.4 
Where  it  is  sought  to  question  a  judgment  erroneously  provid- 

mcnt  was  entered  by  the  clerk  without  575;   Becknell  v.  Becknell,  no  Ind.  42; 

any  order  of  the  court  that  the  failure  Carrothers  v.  Carrothers,  107  Ind.  530; 

to  object  below  prevented  a  considera-  Johnson    v.    Unversaw,    30   Ind.   435; 

tion  of  the  question  on  appeal.    As  sus-  Pierce   v.    Wilson,  4S    Ind.    29S;     Ma- 

taining  this  doctrine   the   court    cited  honey  v.  Robbins,  49  Ind.  146;  Ebber- 

Eaton  v.  Caldwell,  3  Minn.  134;  Olden-  sole  v.  Redding,  22  Ind.  232;   Stout  v. 

berg  v.  De-vine,  40  Minn.  409,  42  N.W.  Cary,  no  Ind.  514. 

Rep.  88;  Lundberg  v.  Single  Men's  En-  2  Cockrum    v.   West,    122    Ind.    372; 

dowment  Association,  41  Minn.  505,  43  Rardin  v.  Walpole,  38  Ind.  146.     See, 

N.   W.  Rep.  394;  Savage  v.  State,  19  also,  Smith  v.  Dodds,  35  Ind.  452;  Jem- 

Fla.  561.  ison  v.  Walsh,  30  Ind.  167. 

1  Clark  v.  Wilson,  77  Ind.  176;  Evans  3  Landers  v.  George,  49  Ind.  309.  See, 

v.  Feeny,  81   Ind.   532;    Stephenson  v.  generally,    McCormick   v.  Spencer,  53 

Ballard,  82  Ind.  87;   Martin  v.   Martin,  Ind.  550;    Miles   v.   Buchanan,   36  Ind. 

74  Ind.  207;  Terry  v.  Shivelv,  93  Ind.  490;   Buchanan  v.  Berkshire,  etc.,  Co., 

413;    City   of  Greenfield   v.    State,    113  96  Ind.  510;   Buell  v.  Shuman,  2S  Ind. 

Ind.  597;  Baddeleyy.  Patterson,  78 Ind.  464;    Teal    v.   Spangler,   72    Ind.   380 

157;   Karle  r\  Simons,  94  Ind.  573;  Mer-  Smith  v.  Tatman,   71    Ind.    171;    Nor- 

ritt  v.  Pearson.   76    [rid.    44;  Jenkins  V.  dyke,  etc.,  Co.  v.  Dickson,  76  Ind.  188; 

Rice,  84  Ind.  342;  Landwerlen  v. Wheel-  Terry  7-.  Shivelv,  93  Ind.  413;  Ingel  v. 

er,  106  Ind.  523,    Kissel!    v.   Anderson,  Scott,  S6  Ind.  51S. 

73    Ind.   485;   Smith   v.   Kyler,    74   Ind.  *  Douglass  v.  State,  72  Ind.  385. 


THE  ASSIGNMENT  OF  ERRORS.  295 

ing  for  a  waiver  of  appraisement  laws  the  objection  must  be 
first  presented  to  the  lower  court.1 

§  346.  Original  Objections  to  Judgments — The  true  rule,  true 
because  it  is  based  on  principle  and  harmonizes  with  kindred 
rules,  is  that  the  objections  to  a  judgment  or  decree  must  be 
specified  with  reasonable  certainty  and  definiteness  in  the  lower 
court.  The  failure  to  there  make  the  proper  specifications 
would,  if  such  specifications  were  permitted  to  be  made  on  ap- 
peal, lead  to  a  transgression  of  the  fundamental  doctrine  that 
where  opportunity  offers  specific  objections  must  be  presented 
to  the  trial  court,  and  it  would  also  lead  to  a  violation  of  the 
rule  designed  to  avoid  prolixity  in  specifying  errors  in  the  as- 
signment. The  cases  which  are  most  consistent  with  principle 
are  those  which  hold  that  the  specific  objections  must  be  first 
presented  to  the  trial  court.2  Objecting  in  a  general  way  is  no 
more  than  asserting  that  the  party  does  object,  and,  surely, 
nothing  of  practical  worth  can  be  accomplished  by  such  a 
course,  for  it  leaves  the  court  to  hunt  for  the  real  objections,  if 
any  there  are.     Not  only  must  the  objections  to  a  decree  or 

1  Johnson  v.  Prine,  55  Ind.  351;  Lewis  case  of  Wainscott  v.  Silvers,  13  Ind. 
v.  Edwards,  44  Ind.  333;  Atkisson  v.  497.  Another  of  the  cases  cited  in 
Martin,  39  Ind.  242;  O'Brien  v.  Peter-  Griffin  v.  Reis,  Piel  v.  Brayer,  30  Ind. 
man,  34  Ind.  556;  Watts  v.  Green,  30  332,  is  not  at  all  in  point.  In  the  case 
Ind.  98.  of   Knarr    v.  Conway,  42    Ind.  260,  no 

2  Stout  v.  Curry,  no  Ind.  514;  Scot-  question  was  made  or  decided  regarding 
ton  v.  Mann,  89  Ind.  404;  Benefiel  v.  the  method  of  objecting  to  the  decree. 
Aughe,  93  Ind.  401;  Horman  v.  Hort-  The  decision  in  Searle7>.  Whipperman, 
mer,  128  Ind.  353;  Mansfield  v.  Shipp,  27  79  Ind.  424,1s  in  principle  opposed  to 
N.  E.  Rep.  427;  Jenkins  v.  Rice,  84  Ind.  the  doctrine  of  Griffin  v.  Reis,  and  so 
342;  Indianapolis,  etc.,  Co.  v.  Smythe,  are  the  cases  first  cited  in  this  note,  as 
45  Ind.  322;  McClain  v.  Sullivan,  85  well  as  many  others.  American  Ins. 
Itul.  174;  Bayless  v.  Glenn,  72  Ind.  5.  Co.  v.  Gibson,  104  Ind.  336,  and  cases 
It  was  held  in  Griffin  f.  Reis,  68  Ind.  cited,  p.  342;  Tachau  v.  Fiedeldey,  81 
9.  that  where  the  objection  is  apparent  Ind.  54;  Shoaf  v.  Joray,  86  Ind.  70; 
on  the  face  of  the  decree  a  general  ex-  Traders  Ins.  Co.  v.  Carpenter,  S5  Ind. 
ception  is  sufficient.  One  of  the  cases,  350.  It  is  safe,  therefore,  to  affirm  that 
Cubberly  v.  Wine,  13  Ind.  353,  cited  in  the  case  we  have  criticized  must  be 
Griffin  v.  Reis,  was  expressly,  and,  as  deemed  to  be  overruled  in  so  far  as  it  af- 
we  think,  correctly  overruled  in  Thomp-  fects  the  question  of  the  mode  of  pre- 
son  v.  Davis,  29  Ind.  264.     With  the  senting  objections  to  a  decree. 

fall  of  Cubberlv  v.  Wine  must  fall  the 


296  APPELLATE  PROCEDURE. 

judgment  be  specific,  but  the  objections  must  also  be  properly 
brought  into  the  record  or  they  will  not  be  regarded.1 

.^  347.  Causes  for  new  trial  not  assignable  as  error — It  has  been 
held  in  very  many  cases  that  rulings  which  properly  form  the 
basis,  grounds,  or  causes,  for  a  new  trial,  can  not  be  inde- 
pendently assigned  as  error.2  This  holding  is  in  accordance 
with  principle,  inasmuch  as  it  gives  the  trial  court  an  opportunity 
to  review  its  own  rulings  and  correct  its  own  errors.  It  also 
gives  consistency  to  procedure  and  secures  harmony,  because 
it  adheres  to  the  fundamental  principle  that  where  objections 
are  required  to  be  made  in  the  trial  court  there  they  must  be 
first  made,  and  there  made  so  fully  that  they  cover  all  the 
questions  involved  in  the  ruling  challenged  on  appeal.3  A 
counterpart  of  the  rule  just  stated  is  supplied  by  the  doctrine 
deducible  from  the  cases  which  hold  that  rulings  properly  as- 
signed as  causes,  or  reasons,  for  a  new  trial  are  brought  before 
the  appellate  tribunal  for  review  by  a  specification  of  error  that 
the  trial  court  erred  in  overruling  the  motion  for  a  new  trial.4 
The  office  of  the  motion  is  to  fully  present  the  reasons  or  causes 

1  McClain  v.  Sullivan,  85  Ind.  174;  60  Ind.  56;  Wiley  v.  Barclay,  58  Ind. 
Adams  v.  LaRose,  75  Ind.  471;  Peoples  577;  Jones  v.  Doe,  1  Ind.  109;  Priddy 
Savings,  etc.,  Co.  v.  Spears,  115  Ind.  297;     v.  Dodd,  4  Ind.  84. 

Forsythe  v.  Kreuter,  100  Ind.  27;  Penn-         3  Hill  v.  Jamieson,  16  Ind.  125;  Fuller 

sylvania    Co.  v.  Niblack,  99  Ind.   149;  v.   Indianapolis,  etc.,   Co.,   iS   Ind.  91; 

Stelzer  v.  LaRose,  79  Ind.  435;     Mar-  Leever  v.  Hamill,  57   Ind.  423;    Wood- 

quess  v.  LaBaw,  S2  Ind.  550;    Quill  v.  field  v.  Barbee,  iS  Ind.  320;    Garver  v. 

Gallivan,  10S  Ind.  235.  Daubenspeck,  22  Ind.  238;    Keyser  v. 

2  Allen  v.  State.  74  Ind.  216;  Smith  Wells,  60  Ind.  261;  Watson  v.  Piel  58 
v.  Kyler,  74  Ind.  575;  Todd  v.  Jack-  Ind.  566.  An  assignment  of  errors  can 
son,  75  Ind.  272;  Cole  v.  Kidd,  So  Ind.  not  be  made  to  serve  the  purposes  of  a 
563;  Bake  v.  Smiley, 84  Ind.  212;  Bolin  motion  for  anew  trial.  Haj's v. Walker, 
v.  Simmons,  81  Ind.  92;  Hutts  v.  Shoaf,  90  Ind.  105. 

SS  Ind.  395;    Kcrnodle  v.  Gibson,  [T4  *  Grant    v.    Westfall,    57    Ind.     121; 

Ind.  451;     Davis  v.  Montgomery,    123  Leever  v.  Hamill,  57  Ind.  223;  Doug- 

Ind.   587;     Robbins  v.  Magee,  96  Ind.  lass  v.  Blankenship,  50  Ind.  160;  Galvin 

[74;   Daunhauer  v.  Hilton,  82  Ind.  531;  v.  State,  56  Ind.  51.     The  proper  speci- 

ome,  96  Ind.  426;    IIous-  fication  in  every  instance  where  cai 

ton   v.  Briner,   59   I  ml.   25;     Lyman   v.  arc   required  to  be  stated  in  a  motion 

Buckner,  (>o  Ind.  402;    Claflin  v.  Daw-  lor  a  new  trial  is  on  the  ruling  denying 

son,  5S  Ind.  40S;     Watson   v.   Piel,  5S  the  motion.     Bolin  r\  Simmons, Si  Ind. 

Ind.  566;   Wallis  v.  Anderson,  etc.,  Co.,  92;  Bane  v.  Ward,  77  Ind.  153. 


THE  ASSIGNMENT  OF  ERRORS.  297 

for  a  new  trial,  and  once  presented  they  need  not  be  repeated, 
as  the  specification  on  the  ruling  denying  the  motion  brings 
all  the  causes  properly  assigned  in  the  motion  to  the  attention 
of  the  appellate  tribunal. 

§  348.   What  matters  are  not  assignable  as  reasons  for  a  new 

trial — Causes  improperly  assigned  in  a  motion  for  a  new  trial 
can  not  be  regarded,  and  rulings  upon  demurrers  or  motions 
addressed  to  the  pleadings  can  not  be  made  causes  for  a  new 
trial.1  Rulings  on  the  pleadings  do  not  pertain  to  the  trial  in 
such  a  sense  as  to  make  it  proper  to  assign  them  as  causes  for 
a  new  trial  and  hence  it  will  accomplish  nothing  to  incorporate 
them  in  the  motion.  It  is  correctly  held,  as  is  evident  from 
the  considerations  just  stated,  that  rulings  on  the  pleadings 
must  form  the  basis  for  independent  and  distinct  specifications 
of  error. 

§  349.   What  should  be  made  Independent  Specifications  of  error — 

While  the  principle  that  all  rulings  other  than  those  made  upon 
the  pleadings  must  be  specified  in  a  motion  for  a  new  trial  is  a 
sweeping  one,  still,  there  are  exceptions  composed  of  instances 
which  it  is  very  difficult  to  classify.  Thus  where  an  applica- 
tion for  a  change  of  judge  in  a  proceeding  for  the  appointment 
of  a  receiver  is  denied  the  ruling  denying  the  change  may  be 
specified  as  an  independent  error.2  The  reason  assigned  for 
this  decision  is  that  there  was  no  opportunity  to  present  the 
question  by  a  motion  for  new  trial.  This  reason  is  a  sound  one 
and  may  be  taken  as  a  standard  by  which  to  determine  whether 

1  Irwin  v.  Smith.  72  Ind.  4S2;  Davis  v.  462;  Gibson  v.  Garreker,  S2  Ga.  46,  9  S. 

Pool, 67  Ind. 425;  Miles  v.  Buchanan,  36  E.  Rep.  124;    Rogers  v.  Rogers,  7S  Ga. 

Ind.  490;  Cincinnati,  etc.,  Co.  v.  Wash-  6SS,   3    S.    E.    Rep.   4.51;      Milliken   v. 

burn,  2$  Ind.  259;  Gray  v.  Stiver.  24  Ind.  Ham,  36  Ind.  166;     Marks   v.  Trustees, 

174;   City  of  New  Albany  :•. White.  100  etc.,  56  Ind.  288;    De  Barry-Baya,  etc., 

Ind. 206;  Pattersons. Scottish  American  Co.  v.  Austin.  76  Ga.  306.     A   motion 

Co.,  107  Ind.  497;    Hamilton  v.  Elkins,  in  arrest  of  judgment   falls  within  this 

46    Ind.   213;     Marshall    v.    Beebcr,    53  rule.      Shore    v.    Taylor,    46    Ind.   345; 

Ind.  83;   Indianapolis,  etc.,  Co.  v.  Stout,  Firestone  v.  Daniels,  71  Ind.  570;   Allen 

53   Ind.   143;    Line    v.    Huber,   57    Ind.  v.  State.  74  Ind.  216;  Todd  v.  Jackson. 

261;     Hunter   v.   Fitzmaurice,  102    Ind.  75  Ind.  272. 

449;  Denman  v.  McMahin,  37  Ind.  241;        *  Shoemaker  v.  Smith   74  Ind.  71. 
Ohio,  etc.,  Co.  v.  Hemberger,  43  Ind. 


APPELLATE   PROCEDURE. 

a  ruling  shall  be  specified  as  an  independent  error,  for  if  there 
is  no  opportunity,  that  is,  no  legal  opportunity,  to  embrace  it  in 
a  motion  for  a  new  trial,  no  other  course  can  be  pursued  by  the 
appellant  than  that  of  making  the  ruling  the  basis  of  an  inde- 
pendent specification  of  error.  Belonging  to  this  anomalous 
class  of  cases  is  the  one  wherein  it  is  held  that  a  ruling  refusing 
to  appoint  a  guardian  ad  litem  is  not  a  cause  for  a  new  trial 
and  hence  the  ruling  may  be  independently  specified.1  To  the 
same  class  may  be  assigned  the  case  which  holds  that  a  motion 
to  set-off  a  judgment  may  form  the  basis  of  an  independent 
specification. - 

§  350.   Independent  Specifications — When  proper — Where   the 

award  of  a  new  trial  will  not  reach  the  ruling  supposed  to  be 
erroneous  the  ruling  should  be  made  the  basis  of  an  independ- 
ent specification  of  error.  It  seems  clear  that  if  the  granting 
of  a  new  trial  will  not  rectify  the  mistake  committed  in  ruling 
upon  a  motion,  application,  or  the  like,  the  ruling  should  not 
be  assigned  as  a  cause  for  a  new  trial,  since  nothing  could  be 
accomplished  by  embracing  it  in  the  motion.  Some  of  the 
cases  seem  to  trench  somewhat  upon  this  rule  but  there  are 
others  which  declare  and  enforce  it.  Thus,  a  refusal  to  remand 
a  case  to  a  justice  of  the  peace  for  trial  is  not  a  cause  for  new 
trial  and  the  ruling  should  form  the  basis  of  an  independent 
specification  in  the  assignment  of  errors.3  Overruling  a  motion 
to  stay  proceedings  brought  to  foreclose  a  mortgage  in  a  State 
court  where  the  mortgagor  has  a  pending  petition  in  bank- 
ruptcy is  not  a  cause  for  new  trial  and  should,  therefore,  be  in- 
dependently assigned  for  error.'  It  is  difficult  to  lay  down  any 
general  rule  which  will  not  be  greatly  broken  upon  by  excep- 
tions, but  it  may  safely  be  said  that  the  general  rule  is  this :     If 

1  Evans  v.  State,  58  Ind.  5S7.  It  is,  Vawter  v.  Gilliland,  55  Ind.  27S,  it  was 
of  course,  to  be  understood  that  the  said  by  the  reporter  that :  "An  errone- 
proper  motion  must  be  made  in  the  cms  ruling  upon  a  motion  made  prior 
trial  court,  for,  under  the  general  rule  to  the  trial  of  a  cause  is  not  a  ground 
so  often  referred  to,  it  can  not  be  first  for  a  new  trial."  It  is  very  clear  that 
made  on  appeal.  this  statement  is  entirely  too  broad;    it 

2  McAllister  v.  Willey,  60  Ind.  195.  is.  indeed,  not  supported  by  the  opinion 

3  Tibbetts   v.  ( >'Connell,  66  Ind.  171.     in  the  case  in  which  it  appears. 
*  Markson  v.  Haney,  47  Ind.  31.     In 


THE  ASSIGNMENT  OF  ERRORS.  •  299 

the  ruling  is  connected  with  the  trial  procedure  and  is  not  made 
upon  the  pleadings,  or  is  not  made  upon  independent  questions 
not  relating  to  the  trial,  or  is  not  made  upon  the  verdict,  or  upon 
answers  of  the  jury  to  interrogatories,  or  does  not  affect  the  form 
of  the  judgment  or  decree,  it  should  be  specified  as  a  cause  or 
reason  for  a  new  trial.  But  the  rule  even  as  stated  is  a  general 
one  burdened  with  exceptions. 

§  351.  Specifications  of  the  motion  for  a  new  trial — The  rule  that 
a  specification  that  the  court  erred  in  overruling  the  motion  for 
a  new  trial  is  all  that  is  ordinarily  required  in  the  assignment 
of  errors  is  easy  of  application  in  all  cases  where  it  is  clear  that 
the  rulings  challenged  are  such  as  pertain  to  the  trial  and  form 
causes  or  reasons  for  a  new  trial,  but  it  is  not  alwa}Ts  easy  to 
determine  what  rulings  should  be  made  the  basis  of  the  spec- 
ifications in  a  motion  for  a  new  trial.  The  cases  upon  the  gen- 
eral subject  go  very  far  in  the  direction  of  holding  that  all 
rulings,  not  made  on  the  pleadings,  but  made  in  the  course  of 
the  proceedings  although  not  directly  connected  with  the  trial, 
must  be  specified  in  the  motion  for  a  new  trial,  and  can  not  be 
specified  as  independent  errors.  Thus,  it  is  held  that  a  ruling 
upon  an  application  for  a  change  of  judge  or  for  a  change  of 
venue  must  be  specified  as  a  cause  for  new  trial,  and  can  not 
be  made  a  specification  of  error.1  So,  in  the  case  of  a  ruling 
upon  a  motion  for  continuance,  the  ruling  must  be  assigned  as 
a  cause  for  a  new  trial  or  it  will  not  be  available  on  appeal.2 
There  is,  it  is  evident,  no  direct  connection  between  what  is 
strictly  trial  procedure  and  many  of  the  rulings  which  are  held 
to  be  so  connected  with  the  trial  as  to  make  it  necessary  and 
proper  to  incorporate  them  in  a  motion.  For  instance,  an  ap- 
plication for  a  change  of  venue  may  be  made  and  overruled 

1  Horton  v. Wilson,  25  Ind.  316;  Knarr  ing  the  law.     State  v.  Wolever.  127  Ind. 

■v.  Conaway,  53  Ind.  120;  Krutz  v.  How-  306. 

ard,  70  Ind.  174;   Wiley  v.  Barclay,  58  2  Continental   Life  Ins.  Co.  v.  Kess- 

Ind.  577;   Walker  v.  Heller,  73  Ind.  46.  ler,  84  Ind.  310;  Bratton   v.  Bratton,  79 

It  may  not  be  out  of  place  to  say  that  Ind.  588;   Arbuckle  v    McCoy,  53  Ind. 

the  remark  in  Krutz  v.  Howard,  supra,  63;-   Carr   v.   Eaton,  42   Ind.  3S5;   Sco- 

that   when    a    sufficient    affidavit   for  a  ville  v.  Chapman,  17  Ind.  470;    Kent  v. 

change  is  made  the  court  has  no  juris-  Lawson,   12    Ind.  675;     Westerfield    v. 

diction,  can  not  be  regarded  as  express-  Spencer,  61  Ind.  339. 


300  APPELLATE  PROCEDURE. 

and  yet  the  trial  proper  may  not  be  entered  upon  until  one  or 
more  terms  have  intervened.  It  is,  however,  no  great  strain 
upon  consistency  to  give  a  very  liberal  effect  to  the  term  trial, 
for  a  motion  for  a  new  trial  is  thus  made  to  bring  in  review 
before  the  trial  court  many  rulings  and  afford  it  an  opportunity 
to  correct  mistakes.  This  is  quite  important  and  is  a  practical 
consideration  justly  exerting  a  controlling  influence.  In  fur- 
ther illustration,  and  as  evidence  of  the  correctness  of  our  state- 
ment that  the  court  inclines  to  extend  to  the  utmost  the  doctrine 
that  specifications  must  be  made  in  a  motion  for  a  new  trial, 
may  be  adduced  the  cases  which  hold  that  the  refusal  to  com- 
pel more  specific  answers  to  interrogatories  addressed  to  a  jury 
must  be  assigned  as  a  cause  for  a  new  trial  and  can  not  prop- 
erly be  made  a  separate  specification  in  the  assignment  of 
errors.1  The  cases  illustrating  and  enforcing  the  doctrine 
embodied  in  our  statement  are  very  numerous,  and  of  great 
variety.2 

§  352.  Trial  where  Issues  of  Law  are  undecided — In  other  cases, 
the  rule  respecting  the  assignment  of  rulings  as  causes  for  a 
new  trial  is  carried  very  far.  The  cases  we  have  in  mind  are 
those  which  hold  that  a  failure  to  object  to  a  trial  where  a  de- 
murrer is  pending  and  undecided  3  is  unavailing  unless  chal- 
lenged in  the  trial  court.  The  earlier  cases  seem  undecided  as 
to  the  mode  of  questioning  the  ruling,  some  of  them  intimating 
that  it  might  be  done  either  by  a  motion  in  arrest  of  judgment 
or  by  a  motion  for  a  new  trial.4     It  appears  clear  to  us  that  the 

1  Staser  v.  Ilogan,  120  Ind.  207,  211;  son  v.  Weaver,  17  Ind.  223;  The  Cin- 
Bedford,  etc.,  Co.  v.  Rainbolt,  99  Ind.  cinnati,  etc.,  Co.  v.  McFarland,  22  1ml. 
551;  West  v.  Cavins,74  [nd.  265;  Ogle  459;  King  v.  State,  15  Ind.  64;  Perrin 
v.  Dill,  61  Ind.  43S;  Patterson  v.  Lord,  v.  Johnson,  16  Ind.  72;  Kegg  v.  Welden, 
47  Ind.  203.  10  Ind.  550.    See  Hansher  v.  Hansher, 

2  Western  Union  Tel.  Co.  v.  Frank,  85  94  Ind.  208. 

Ind.  480;   Neffv.  Reed,  98  Ind.  341,  345  *  Haunt'.  Wilson,  28  Ind.  296;  Miles 

(partially  overruling  Dukes  v.  Working,  v.  Buchanan,  36  Ind.  490, 500.     In  other 

93  Ind.  501);   Meranda   v.  Spurlin,   100  eases  it  is  held  that  a  motion  for  a  new 

Ind.  380,  388;    Racer  v.  Baker,  113  Ind.  trial  presents   the  question.     Anderson 

177;   McDonald  v.  Stader,   io  Ind.  171.  v.  Weaver,  17  Ind.  223;  Gray  v.  Cooper, 

3  That  it  is  error  to  try  a  ease  where  5  [nd.  506.  See,  also,  Kegg  v.  Welden, 
there  is  an  issue  of  law  undecided  is  10  Ind.  550;  Waldo  v.  Richter,  17  Ind. 
asserted  in  Gray  v.  Cooper,  5  Ind.  506;  564. 

Waldo  v.  Richter,  17  Ind.  634;  Ander- 


THE  ASSIGNMENT  OF  ERRORS.  301 

intimations  that  it  might  be  done  in  either  mode  are  clearly 
wrong  inasmuch  as  there  is  such  a  wide  difference  between  the 
two  motions.  To  show  the  essential  difference  it  is  only  nec- 
essary to  mention  one  important  phase  of  it,  and  that  ma}'  be 
done  by  suggesting  that  a  motion  in  arrest  cuts  off  a  motion 
for  a  new  trial.1  We  venture  to  suggest  that  a  motion  in  arrest 
is  not  the  proper  mode  of  presenting  the  question,  for  the  ques- 
tion ought,  upon  principle,  to  be  presented  before  trial,  or  else 
all  objections  should  be  regarded  as  waived.  This  conclusion 
is  supported  by  the  cases  which  hold  that  parties  by  going  to 
trial  without  objection  waive  the  formation  of  issues.2  The 
rule  which  best  harmonizes  with  decisions  in  analogous  cases 
requires  that  objections  should  be  specifically  stated  before  en- 
tering upon  the  trial,  and  that  the  ruling  on  the  objections 
should  be  assigned  as  one  of  the  causes  for  a  new  trial.  This 
rule  is  fair  to  the  court  and  to  the  parties  and  is  required  by 
considerations  affecting  the  consistency  of  the  system  of  pro- 
cedure. There  is  seldom  any  reason  for  creating  exceptions 
to  the  settled  and  salutary  rule  which  requires  that  objections 
should  be  specific  and  should  be  opportunely  presented.  To 
permit  parties  to  make  questions  of  the  kind  we  have  under 
immediate  mention  would,  it  may  be  added,  be  an  indefensible 
violation  of  the  rule  prohibiting  parties  from  talcing  the  chance 
of  success  on  the  trial  and  afterwards  interposing  an  objection 
that  might  quite  as  easily  have  been  made  before  the  trial  began. 

§  353.  Amendment  of  the  Assignment  of  Errors — Amendments 
of  the  assignment  of  errors  can  not  be  made  after  the  cause  is 
submitted   except  upon   leave  of  court.3     The  application   for 

1  McKinney  v.  Springer,  6  Ind.  453;  Warsaw  v.  Dunlap,  112  Ind.  576;  Hart- 
Doe  v.  Clark,  6  Ind.  466;  Hord  v.  Cor-  lep  v.  Cole.  101  Ind.  458;  Trentman  v. 
poration  of  Noblesville,  6  Ind.  55;  Bep-  Eldridge.  9S  Ind.  525;  Helm  v.  First 
ley  v.  State,  4  Ind.  264;  Rogers  v.  Max-  National  Bank,  91  Ind.  44;  Chambers 
well,  4  Ind.  243;  Mason  v.  Palmerton,  2  v.  Butcher.  S2  Ind.  508;  Hose  v.  All- 
Ind.  117;  Gillespie  v.  State,  9  Ind.  3S0;  wine,  91  Ind.  497;  Farmers  Loan  and 
Weatherhead  v.  Bray,  7  Ind.  706;  Cin-  Trust  Co.  v.  Canada,  etc.,  Co.,  127  Ind. 
cinnati,  etc.,  Co.  v.  Case,  122   Ind.  310.  250.     See    "Holding    parties    to    Trial 

2  June  v.  Payne,  107  Ind.  307;  John-  Court  Theories,"  post,  Chapter  XXIV. 
son  v.   Briscoe,  92    Ind.  367;    City   of        s  Rule  IV. 


302  APPELLATE  PROCEDURE. 

leave  is  required  to  be  in  writing  and  to  show  that  due  care  and 
diligence  were  exercised  in  preparing  the  assignment.  Ten 
days'  notice  of  the  application  must  be  given. 


CHAPTER   XVII. 


APPEAL  BONDS. 


$  354- 
355- 
356. 
357 


358. 
359- 

360. 
361. 
362. 
363- 
364- 
365- 


366. 


367- 


Power  to  exact  a  bond.  §  368. 

Nature  of  appeal  bonds.  369. 

The  bond  is  statutory. 

Rule  where  there  is  no  jurisdic-  370. 

tion  of  the  matter  in  which  the  371. 

bond  is  executed.  372. 

The  bond  is  aided  by  the  statute.  373. 

Construction  of  appeal  bonds —  374. 
General  rule. 

Recovery  limited  by  the  penalty.  375. 

Interest  beyond  the  penalty. 

The  obligation  of  the  bond.  376. 

Mode  of  executing  the  bond. 

Form  and  substance  of  the  bond.  377. 

Right  of  appellee   to  require  a  37S. 
well  framed  and  properly  ex- 
ecuted bond.  379. 

Authority  of  trial  court  to  fix 

the  penalty  and    approve  the  .380. 

sureties  —  Conclusiveness    of  3S1. 

the  order  of  approval.  3S2. 

Demanding  a  new  bond — Prac-  383. 
tice. 


Estoppel  of  the  sureties. 

By  whom  the  bond  should  be 
approved. 

Informal  or  irregular  approvals. 

Approval  may  be  implied. 

Effect  of  the  approval. 

Evidence  of  filing  and  approval. 

The  bond  as  essential  to  the  ef- 
fectiveness of  an  appeal. 

Bond  not  ordinarily  essential  to 
jurisdiction. 

Appearing  without  objecting — 
Waiver. 

Amending  defective  bonds. 

Motion  to  dismiss  because  of 
defective  bond. 

Promptness  required  in  asking 
leave  to  amend. 

Enforcement  of  the  bond. 

What  will  release  sureties. 

Surety's  right  of  subrogation. 

Measure  of  recovery. 


§  354.  Power  to  exact  a  Bond — The  fundamental  principle  that 
the  right  of  appeal  to  an  appellate  tribunal  is  not  an  inherent  or 
absolute  one1  necessarily  leads  to  the  conclusion  that  the  le«;is- 


1  Bowman  v.  Lewis,  101  U.  S.  22,  25 
Law.  ed.  992;  Hayes  v.  Missouri,  120 
U.  S.  68,  30  Law.  ed.  578.  In  Sullivan 
v.  Haug,  82  Mich.  54S,  10  Lawyer's  Rep. 
Anno.  263.  it  was  said:  "The  right  to  an 
appeal  is  and  always  has  been  statutory, 
and  does  not  exist  at  common  law.  It  is 
a  remedy  which  the  legislature  may  in 
its  discretion  grant  or  take  away,  and 
it  may  prescribe  in  what  cases  and  un- 


der what  circumstances  and  from  what 
courts  an  appeal  may  be  taken."  Schoon- 
er Constitution  r'.Woodworth,  2  111.  511; 
Ward  v.  People,  13  111.  635;  Ex  parte 
McCardle,  7  Wall.  506;  Clark  v.  Ray- 
mond, 27  Mich.  456;  Prout  v.  Berry.  2 
Gill.  (Md.)  147;  State  v.  Northern  Cen- 
tral R.  Co.,  iS  Md.  IQ3.  See.  ante.  Chap- 
ter V,  "  What  May  be  Appealed  From.-' 
But  where  a  right  of  appeal  is  given  by 


(303) 


304  Appellate  procedure 

lature  may,  within  constitutional  limits,  regulate  the  mode  of 
procedure  and  prescribe  the  acts  that  must  be  done  by  a  party 
who  desires  to  perfect  an  appeal.  As  the  subject  is  a  legisla- 
tive one  the  discretion  of  the  legislature  can  not  be  controlled 
by  the  courts  although  the  courts  may  adjudge  enactments  which 
violate  the  constitution  to  be  void.  Within  the  limits  of  its  con- 
stitutional powers  the  legislature  may  make  any  condition  or 
prescribe  any  terms  it  deems  proper.  It  is,  therefore,  within  the 
power  of  the  legislature  to  exact  a  bond  as  a  condition  of  the 
exercise  of  the  right  of  appeal  and  to  prescribe  the  form  and 
terms  of  the  obligation.  The  power  has  often  been  exercised 
in  this  State,  as  in  the  case  of  appeals  from  judgments  of  jus- 
tices of  the  peace,  appeals  in  term  and  appeals  from  interlocu- 
tory orders  and  decrees. 

§  355.  Nature  of  Appeal  Bonds — It  is  said  by  a  text-writer  that 
an  appeal  bond  is  an  official  bond,1  but  this  is  true  only  in  a 
limited  and  qualified  sense.  An  appeal  bond  is,  it  is  true,  an 
obligation  prescribed  by  statute  and  it  is  given  in  the  course  of 
judicial  proceedings,  but  it  is  not  executed  to  secure  the  per- 
formance of  official  duties  nor  to  give  the  State  or  any  of  its 
instrumentalities  a  right  of  action  for  a  breach  of  official  duty.2 
The  principal  object  of  the  law  in  requiring  an  appeal  bond  is 
to  secure  an  individual  litigant  from  loss.  The  State  or  its  in- 
strumentalities may,  no  doubt,  enforce  an  appeal  bond  in  many 
instances  but  not  in  an)-  purely  governmental  capacity.  Where 
the  State,  or  its  municipalities,  can  enforce  an  appeal  bond  it 

law  it  is  not  in  the  power  of  t  lie  judi-  is,  however,  a  radical  difference  between 

ciary  to  deny  or  to  restrict  it.     Heffren  the  two  kinds  of  bonds,  and   the  term 

v.   (avne.  39  Ind.  403,  470;  Martin  v.  "appeal  bond"  is  sometimes  mislead- 

Martin,    6    Blackf.   321;    Robinson   v.  ing,  inasmuch  as  it  creates  the  impres- 

Roberts,  16  Fla.  156.  sion  that  a  bond  is  always  essential  to 

1  Murfree  on  Official  Bonds,  §  36.  an    appeal.     It   is  true   that   a  bond  is 

2  The  term  "  appeal  bond  "  is  ageneric  often  essential  to  the  appeal,  hut,  as  will 
one  and,  as  ordinarily  used,  includes  be  hereafter  shown,  it  is  not  generally 
bonds  that  are  strictly  appeal  bonds  as  essential  to  the  effectiveness  of  the  ap- 
well  as  supersedeas  bonds.  Weconform  peal,  although  it  is  indispensably  nec- 
to  the  usual  practice  and  here  employ  essary  to  secure  a  supersedeas  or  stay 
the  term  "  appeal  bond  "  as  a  generic  one  of  proceedings. 

including  both  kinds  of  bonds.     There 


APPEAL  BONDS.  305 

is  ordinarily  because  the  bond  is  executed  to  it  as  a  party  to  the 
judgment  appealed  from  and  in  all  such  cases  the  State,  or  its 
organ,  asserts  a  contract  right  and  not  a  governmental  one.1 
A  bond  executed  to  secure  a  stay  of  proceedings,  or  to  perfect 
an  appeal,  is  a  contract  vesting  in  the  obligee  a  right  of  action 
in  the  event  that  its  conditions  a^e  broken.  The  fact  that  it  is 
executed  in  the  course  of  judicial  proceedings  and  to  the  ap- 
proval of  a  judicial  or  ministerial  officer  does  not  make  it  strictly 
an  official  bond.  It  lacks  many  of  the  incidents  of  such  a  bond 
as,  for  instance,  its  mere  execution  does  not  ordinarily  create  a 
lien  upon  the  property  of  the  obligor,  nor  does  the  lien  fasten 
upon  the  property  at  the  time  the  action  on  it  is  commenced. 
It  is  not  given  the  extraordinary  effect  of  an  official  bond.  It 
is  executed  in  a  particular  instance  and  is  not  a  general  or  con- 
tinuous obligation. 

§  356.  The  Bond  is  Statutory — An  appeal  bond  regularly  exe- 
cuted in  the  course  of  judicial  proceedings  because  required  by 
law  is  a  statutory  bond.  As  the  bond  is  statutory  the  provisions 
of  the  statute  must  be  given  consideration  in  determining  the 
effect  of  the  obligation.  It  is,  indeed,  a  general  rule  that  the 
law  enters  as  a  silent  but  influential  factor  into  all  contracts.2 
This  general  rule  must,  it  is  obvious,  apply  with  peculiar  force 
to  a  bond  executed  by  a  party  because  he  is  bidden  by  an  ex- 
press statute  to  execute  it  as  a  condition  to  his  obtaining  aid 
from  the  judicial  tribunals  of  the  State. 

1  This  proposition  rests  upon  the  301;  Lowry  v.  Francis,  2  Yerg.  534; 
well  known  rule  that  where  a  State  en-  Grogan  v.  San  Francisco,  iS  Cal.  590. 
ters  into  a  contract  it  lays  aside  its  at-  2  Longr.  Straus,  107  Ind.94;  Cogges- 
tributes  and  prerogatives  as  a  sovereign  hall  v.  State,  112  Ind.561;  Carr  v.  State 
and  acts  substantially  as  an  individual  127  Ind.  204,  11  Law.  Anno.  Rep.  370, 
citizen.  Its  contracts  are  interpreted  372;  Foulks  v.  Falls,  91  Ind.  31^,320; 
as  are  the  contracts  of  individuals.  HudsonCanal  Co.  v.  Pennsylvania  Coal 
Hans  v.  Louisiana,  134  U.  S.  1;  Hart-  Co.,  8  Wall.  276,  2SS.  In  the  case  first 
man  v.  Greenhow,  102  U.  S.  672,  679;  cited  it  was  said:  "All  contracts  have 
Poindexter  v.  Greenhow,  114  U.  S.270;  imported  into  them  legal  principles 
Keith  v.  Clark,  97  U.  S.  454;  Murray  which  can  no  more  be  varied  bv  parol 
v.  Charleston,  96  U.  S.  432;  Carr  v.  evidence  than  the  strongest  and  clear- 
State,  127  Ind.  204,  11  Law.  Anno.  Rep.  est  express  stipulations." 
370;  Georgia,  etc.,  Co.  v.  Nelms,  71  Ga. 

20 


306 


Al'I'I   LLATE    PROCEDURE. 


is  357.  Rule  where  there  is  no  Jurisdiction  of  the  matter  in  which 
the  Bond  is  executed — It  is  generally  held  that  statutory  bonds 
executed  in  a  matter  where  there  is  no  jurisdiction  of  the  sub- 
ject are  not  enforceable,  but  the  doctrine  lias  not  met  with  de- 
cided or  uniform  approval.1  The  rule  is  at  best  a  harsh  one 
and  in  many  instances  is  productive  of  injustice,  so  that,  as  it 
seems  to  us,  it  is  one  to  be  restricted  rather  than  enlarged. 
The  authoritative  decisions  do,  indeed,  confine  the  rule  to  cases 
where  there  is  an  entire  want  of  jurisdiction  of  the  subject,  and 
refuse  to  extend  it  to  cases  where  there  is  nothing  more  than  a 
defect,  although  it  is  such  a  defect  as  would  warrant  a  dismissal 
upon  an  appropriate  and  timely  objection.2  It  does  not  always 
follow  that  a  bond  taken  without  authority  is  void,  since  there 
are  cases  in  which  a  bond  attempted  to  be  given  under  a  stat- 
ute may  be  ineffective  as  a  statutory  bond  and  yet  enforceable 
as  a  common  law  bond.3     There  is   a  disposition,  and   it  is   a 


1  Caffrey  v.  Dudgeon,  3S  Ind.  512,  S. 
C.  10  Am.  Rep.  126;  Ham  7'.  Greve,  41 
Ind.  531;  State  v.  McLaughlin,  77  Ind. 
33^;  State  v.  Younts,  89  Ind.  313;  Olds 
7\  State,  6  Blackf.  91 ;  Wilson  7'.  Hob- 
day, 4  M.  &  S.  121;  Commonwealth  7'. 
Jackson,  1  Leigh.  4S5;  Sherry  v.  Fores- 
man,  6  Blackf.  56;  Byers  v.  State,  20 
Ind.  47;  Benedict  7'.  Bray,  2  Cal.  251. 
See,  also,  Sheeley  7>.Wiggs,  32  Mo.  398, 
Deardorf  7'.  Ulmer,  34  Ind.  353; 
Garnet  v.  Rogers,  52  Mo.  145;  Smith  v. 
St.  Louis,  etc.,  Co.,  53  Mo.  33S;  Hessey 
v.  Heitkamp,  9  Mo.  A  pp.  36.  The  rule 
\\a>  applied  to  a  case  wherein  the  bond 
was  not  tiled  within  the  time  limited  by 
statute  in  Moore  7'.  Damon,  4  Mo.  App. 
111.  It  is  to  be  said  of  Deardorf  7'.  Ul- 
mer. that  it  carries  the  rule  very  far  and 
that  its  scope  is  much  limited  by  subse- 
quent decisions,  it  indeed,  some  of  its 
declarations  are  not  completely  over- 
thrown. Fawkner  v.  Baden,  89  Ind. 
ml  cas,s  cited  in  the  following 
note.  See,  also.  Eddy  v.  Beal,  34  Ind. 
159.  Memmler  7'.  Roberts,  Si  Ga.,  659, 
8  S.  E.  Rep.  525,  supplies  an  example 


of  the  just  application  of   the   general 
doctrine  stated  in  the  text. 

2  Trueblood  7'.  Knox,  73  Ind.  310,  311 
Sammons  v.  Newman,  27  Ind.  508; 
Carver  7'.  Carver,  77  Ind.  49S;  Bugle  v. 
Myers,  59  Ind.  73;  Wiseman  v.  Lynn, 
39  Ind.  250;  Peele  7'.  State,  1  iS  Ind.  c;  1 2, 
517;  Lucas  v.  .Shepherd,  16  Ind.  368; 
Gray  v.  State,  78  Ind.  68;  Harbaugh  :■. 
Albertson,  102  Ind.  69;  Cunningham  r\ 
Jacobs,  120  Ind.  306.  In  Stevenson  v. 
Miller,  2  Litt.  (Ky.),  306,  310,  and  Gudt- 
ner  7'.  Kilpatrick,  14  Neb.  317,  the  rule 
that  a  bond  is  void  where  there  is  no  ju- 
risdiction is  opposed  and  limited.  The 
doctrine  we  have  indicated  in  the  text 
as  the  correct  one  is  sustained  by  tin- 
decision  in  the  case  of  Robertson  v. 
Smith  (Ind.),  28  N.  E.  Rep.  857. 

3  Turner  v.  Armstrongs  Brad.  (111. 
App.)  24;  Sheppard  7'.  Collins.  12  la. 
^70;  Barnes  v.  Webster,  16  Mo.  25S; 
Williams  7'.  Coleman,  49  Mo.  t,:$\ 
Cunningham  7'.  Jacobs,  120  Ind.  306. 
A  bond  taken  in  violation  of  law  is  in- 
operative, but  a  bond  is  not  necessarily 
void  where  it  is  executed  under  a  stal 


APPEAL  BONDS.  307 

commendable  one,  on  the  part  of  the  courts,  to  enforce  bonds 
given  in  legal  proceedings  wherever  it  appears  that  the  party 
whose  duty  it  was  to  execute  a  bond  has  received  benefit  from 
the  bond,  although  it  may  not  be  well  executed  and  although 
there  may  be  some  defect  of  a  jurisdictional  nature  but  not  of 
such  a  character  as  to  completely  deprive  the  tribunal  of  juris- 
diction.1 Weight  is  attached — justly,  as  we  believe — by  the 
better  considered  cases  to  the  fact  that  the  bond  has  yielded 
the  principal  obligor  beneficial  consideration.  But  upon  this 
point  the  decisions  are  conflicting.  The  conclusion  stated  is  in 
some  instances  promoted  by  an  application  (and,  possibly,  ex- 
pansion), of  the  doctrine  of  estoppel.2  The  principle  that 
where  an  appeal  bond  operates  as  the  parties  intended  it  should 
operate,  and  secures  all  the  rights  that  a  perfect  bond  could 
secure,  the  obligors  will  be  held  liable  is  often  applied,  and  so 
applied  as  to  make  the  obligation  effective  against  all  the  oblig- 
ors, sureties  as  well  as  principals.  By  virtue  of  this  manifestly 
sound  and  equitable  rule  courts  are  enabled  to  disregard  errors 
and  irregularities  even  of  a  jurisdictional  nature,  and  give  such 
effect  to  appeal  bonds  as  makes  them  fully  subserve  the  pur- 
poses for  which  they  were  executed  by  the  obligors.3 

§358.  The  Bond  is  aided  by  the  Statute — The  statute  under 
which  parties  assume  to  execute  an  appeal  bond  may  properly 
be  resorted  to  in  order  to  enable  the  court  to  give  just  effect  to 
the  provisions  of  the  instrument.     That  statute,  even  without 

ute  but  is  not  enforceable  as  a  statutory  120  Ind.  247;  Buchanan  v.  Milligan, 
bond.  Baker  v.  Board,  53  Ind.  497.  125  Ind.  332;  Riley  v.  Mitchell,  38 
See,  generally,  Pennsylvania,  etc.,  Co.  Minn.  9,  35  N.  W.  Rep.  472;  Robertson 
v.  Cook,  123  Pa.  St.  170,  16  Atl.  Rep.  v.  Smith  (Ind.),  28  N.  E.  Rep.  857. 
762;  Pray  v.  Wasdell,  146  Mass.  324;  The  principle  asserted  by  the  cases  re- 
Goodwin  v.  Bunzl,  50  N.  Y.  Superior  ferred  to  in  this  and  in  the  preceding 
Ct.  441.  note  is  a  general  one  and  governs  to  a 

1  Willis  v.  Rivers,  80  Ga.  556,  7  S.  E.  great  extent  all  statutory  bonds  or  un- 
Rep.  90;  Com.  v.  Wetzel,  S4  Ky.  537,  dertakings. 

2  S.W.  Rep.  123;   Smith  v.  Biscailuz,  84  3  Easter  v.    Acklemire,  81   Ind.    163; 

Cal.    344,    21    Pac.    Rep.    15;    Riley  v.  Jones  v.  Droneberger,  23  Ind.  74;   Ham 

Mitchell,  3S  Minn.  9,  315  N.W.  Rep.  472.  v.  Greve  41  Ind.  531 ;    State  v.  Britton, 

2  Trueblood  t*.  Knox,  73  Ind.  310,  311;  102  Ind.  214;  Smock  t>.  Harrison,  74 
Carver  v.  Carver,  77  Ind.  49S;  Beeman  Ind.  34S;  Railsback  v.  Greve,  58  Ind.  72. 
v.  Banta,  113  N.Y.  615;  Hartlep  f.Cole, 


308  APPELLATE  PROCEDURE. 

the  aid  of  the  statute  expressly  providing  that  defects  shall  not 
vitiate  a  bond  given  pursuant  to  law,  may  exert  an  important 
inlluence  upon  the  question  of  the  effectiveness  and  meaning 
of  the  bond.  Defects  may  often  be  cured,  ambiguities  removed 
and  obscurities  cleared  away,  by  considering  the  provisions  of 
the  statute  under  which  the  bond  was  executed,  the  purpose  it 
was  intended  to  subserve  and  the  object  it  did  actually  accom- 
plish.1 But  the  examination  is  not  to  be  confined  to  the  statute 
under  which  the  obligors  assumed  to  execute  the  bond.  The 
curative  statute  is  broad  and  comprehensive,  and  heals  defects 
in  bonds  executed  in  the  course  of  legal  proceedings.2 

§  359.  Construction  of  Appeal  Bonds — General  rule — Independ- 
ently of  the  curative  statute,  the  construction  of  bonds  required 
by  law  to  be  executed  to  the  approval  of  public  officers  should 
be  liberal  in  favor  of  the  obligees.  This  doctrine  was  long  since 
declared  and  the  reasons  upon  which  it  rests  exhibited  3  The 
reports  contain  many  cases  wherein  the  rule  of  liberal  construc- 
tion is  asserted  and  enforced.4 

§  360.  Recovery  limited  by  the  penalty — It  is  an  elementary 
rule  that  courts  can  not  make  contracts  for  parties  but  can  only 
give  effect  to  a  contract  according  to  the  agreements  and  stipu- 
lations embodied  in  the  instrument  evidencing  the  contract. 
This  rule  forbids  the  court  from  substituting  entirely  different 
provisions  for  those  written  in  an  appeal  bond.     Defects  and 

1  Stevenson    v.    State,    71     Ind.    52;  'Conner  v.  Paxson,  1  Blackf.  207. 
Yeakle  v.  Winters,  60  Ind.  554;   State  *  McCarty    v.    State,    1    Blackf.   240; 
v.  Berg,  50  Ind.  496.  Dyer  v.   Bradley,  SS  Cal.  590,  26  Pac. 

2  Ward  ;'.  Buell,  18  Ind.  104;  Opp  v.  Rep.  511;  Smith  r.  Nescatunga,  36  Kan. 
Ten  Eyck.  9)  Ind.  345,  346;  Sturgis  v.  758,  14  Pac.  Rep.  246;  Baldridge  v. 
Rogers,  26  Ind.  1;   Hudelson  v.  Arm-  Penland,  68  Tex.  441,  4  S.W.  Rep.  565; 

0  I  tiiI.  ij(j;   Fuller  v.  Wright,  59  Peoples  Co.  v.  Babinger,  40  La.  247,  4 

I,ui-333i  Black   v.   State,  58  Ind.  5S9;  So.  Rep.  82;   Acker  v.  Alexandria,  etc., 

Cook  v.  State,   13  Ind.   154;  Gavisk  v.  Co.,  S4  Va.  64S,  5  S.  E.Rep.6SS;  Field 

McKeever,  37  Ind.  484;  Dunn  v.  Crock-  v.  Schricher,  14  Iowa,  119;  Gay  v.  Par- 

er,  ^2  Ind.  324;  Corey  v.  Lugar.  62  Ind.  part,  101  U.  S.  391;  Kountze  v.  Omaha 

60.     The  cases  of  Malone   v.   McClain,  Co.,   107  U.  S.  37S;   Matthews  v.  Mor- 

3  Ind.  532,  and  Epstein  v.  Greer,  S5  Ind.  rison,  13  R.  I.  309. 
372,  can  not  be  fully   accepted  as  ex 
pressive  of  the  law. 


APPEAL  BONDS.  309 

imperfections  may  be  supplied  but  a  new  and  different  contract 
can  not  be  framed  by  the  courts.1  In  some  cases  this  rule  has 
been  very  strictly  enforced  and  the  parties  held  closely  to  the 
words  of  the  instrument,2  but,  as  we  have  already  indicated, 
there  is  no  reason  for  an  illiberal,  narrow,  or  technical  con- 
struction of  appeal  bonds.3  It  has,  however,  long  been  the 
doctrine  of  our  court  that  sureties  can  not  be  held  liable  beyond 
the  penalty  expressed  in  the  bond  in  cases  where  a  penalty  is 
fully  designated.  The  rule  is  otherwise  where  no  penalty  is 
designated,  for  in  such  a  case  the  law  will  hold  the  "obligors 
liable  to  the  extent  required  by  the  statute."4  It  is  not  easy  in 
any  case  to  uphold  the  doctrine  that  the  penalty  is  an  absolute 
limitation  in  view  of  the  statutory  provision  that  the  obligors 
shall  be  bound  "to  the  full  extent  contemplated  by  law."5  It 
is,  at  all  events,  difficult  to  find  a  sufficient  reason  for  allowing 
the  penalty  to  fully  control  in  cases  where  the  bond  clearly  re- 
cites the  judgment  appealed  from,  and  the  record  shows  the 
judgment  to  be  for  a  fixed  and  clearly  designated  sum.6  It 
would  seem  that  in  such  a  case  the  obligation  should  be  deemed 
to  secure  the  payment  of  the  sum  fixed  bv  the  judgment  named 
or  described,  since  it  is  plainly  the  purpose  of  the  statute  that 
the  bond  shall  afford  such  security.  Where  the  judgment  ap- 
pealed from  is  not  for  any  fixed  and  designated  sum  it  may 

1  Sturgis  v.  Rogers,  26  Ind.  1.  that  the    rule    for  the    construction    of 

2  Boulden  v.  Estey  Organ  Co.  (Ala.),     an  appeal  bond  should  be  liberal. 

9  So.  Rep.  2S3;    Jones  v.  Woodstock  *  Ward   v.  Buell,   iS  Ind.   104;   King 

Iron  Co,  90  Ala.  545,  8  So.  Rep.  132;  v.  Brewer,  19  Ind.  267;   Sharpe  v.  Hard- 

Garrett  v.  Shove,  15  R.  I.  538,9  Atl.  R.  ing,  21  Ind.  334;  Graeter  v.  De  Wolf, 

901;    Frevert  v.  Swift,  19  Nev.  400,  13  112  Ind.  1. 

Pac.  Rep.  6.  See,  also,  Figures  v.  Dunk-  5  R.  S.  1SS1,  §  1221. 

lin.  68  Tex.  645,  5  S.W.Rep.503;  Jack-  6  In  Opp  v.  Ten  Eyck,  99  Ind.  345, 

son  v.  Relf,  24  Fla.  198,  4  So.  Rep.  534;  34S,  it  was  said,  in  speaking  of  the  stat- 

Freest^.  Baker  (Tex.),  6  S.W.  Rep.  563;  ute,  "  The  force  and  effect  of  this  section 

Harmon  v.  Herndon,  99  N.  C.  477,  6  S.  is  to  cure  defects  and  supply  omissions 

E.  Rep.  411.  in  the   class  of  bonds  named,  whether 

3  It  is  not  to  be  expected  that  public  the  defects  be  of  form  or  substance,  and 
officers  will  as  vigilantly  and  carefully  to  hold  the  obligors,  both  principals  and 
guard  the  interests  of  a  party  as  the  sureties,  to  the  full  extent  of  the  law  re- 
party  would  himself  do,  and  it  is  with  quiring  the  bond."  This  seems  sound 
reason  that  many  of  the  courts  assert  doctrine,  but  not  easily  reconciled  with 

other  decisions. 


310  A.PPELL  VTE   PROCEDURE 

well  be  held  that  the  penalty  limits  the  liability  on  the  bond,  but 
where  the  bond  recites  the  purpose  for  which  it  was  executed, 
describes  the  judgment  and  shows  it  to  be  for  a  fixed  sum,  there 
is  difficulty  in  sustaining  the  doctrine  of  some  of  the  cases  that 
the  penalty  limits  the  recovery.  There  is  strong  reason  for 
condemning  a  doctrine  which  bends  the  recitals  and  statements 
of  the  bond,  aided  as  they  are  by  statute,  to  the  single  clause 
designating  the  penalty. 

§361.  Interest  beyond  the  penalty — The  rule  declared  by  the 
cases  referred  to  in  the  preceding  paragraph  does  not,  however, 
go  to  the  extent  of  denying  a  recovery  for  interest  which  ac- 
crues subsequent  to  the  execution  of  the  bond.  We  think  that 
interest  upon  the  sum  covered  by  the  bond  which  accrues  after 
the  execution  of  the  bond,  may  be  recovered,  although  to  award 
it  may  increase  the  liability  of  the  obligors  beyond  the  sum  des- 
ignated as  the  penalty.  The  effect  of  the  statute  is,  at  the  very 
least,  to  make  the  bond  a  security  for  the  sum  covered  by  the 
penalty,  and  the  interest  on  that  sum  attaches  as  an  incident  of 
the  principal.  It  seems  clear  that  it  can  not  be  justly  affirmed 
that  a  party  is  liable  for  a  principal  sum  and  yet  not  liable  for 
an  inseparable  incident  of  the  principal.  The  doctrine  we  as- 
sert may  be  enforced  without  departure  from  former  decisions, 
and  it  is  certainly  strongly  fortified  by  authority.1  We  do  not  say 
that  the  bond  should  be  so  construed  as  to  give  a  right  to  costs 
and  interest  which  accrued  before  its  execution  in  cases  where 
the  penal  clause  fixes  a  definite  and  specific  sum  and  thus  limits, 
as  our  cases  hold,  the  liability  of  the  obligors  ;  what  we  do  say  is 
that  interest  and  costs  which  accrue  after  the  execution  of  the 
bond  are  incidents  not  so  provided  for  or  covered  by  the  penalty 
as  to  exclude  the  right  to  re'cover  such  interest  and  costs.  The 
penal  clause  should  not,  as  we  think,  be  permitted  to  overreach 

■  [ves  -.   Merchants'  Bank,   12   How.  v.  Morris,   io  Leigh,  284;    Marshall  v. 

U.  S.  159;   United  States   r».  Arnold.   1  Minter,  4.3   Miss.  666;  Fraser  v.  Little. 

5}S;  Crane   v.   Andrews,   10  Col.  13   Mich.   195;    Hughes  v.   Hughes,    54 

265;    Brainard  v.  Jones,   iS  N.  Y.  3$;  Pa.  St.  240;  Allen  v.  Grider,  24  Ark. 

Washington,    etc.,    Co.   v.    Colton.    26  271;   Roulain  v.  McDowall,  1  Bay.  490; 

Conn.  42;  Carter  v.  Thorn,  [8  T>.  Mon,  Smedes  v.  Hooghtaling,  3  Caines,  4S. 
613;  Pitts  f.Tilden.  2  Mass.  nS;  linker 


APPEAL  BONDS.  31  J 

all  other  considerations  and  provisions,  and  rigidly  establish 
the  measure  of  liability.  The  penalty  of  an  ordinary  bond 
measures  the  liability  up  to  the  time  of  breach  but  does  not  ex- 
tend further,  so  that  it  is  simply  the  limit  of  the  liability  at  the 
time  the  condition  of  the  obligation  is  broken,  and  certainly 
there  is  no  reason  for  applying  a  more  liberal  rule  in  favor  of 
obligors  to  appeal  bonds.  We  m'ay  say,  in  conclusion,  that  we 
understand  it  to  be  affirmed  by  our  decisions  and  by  those  of 
other  courts,1  that  a  recovery  upon  an  appeal  bond  can  not  ex- 
ceed the  penalty  of  the  bond  in  a  case  where  the  claim  is  wholly 
based  upon  something  which  occurred  prior  to  the  execution  of 
the  bond,  but  we  do  not  understand  that  this  rule  applies  to  a 
claim  such  as  that  of  one  who  asserts  a  right  to  interest  accru- 
ing subsequent  to  the  breach,  and  there  is,  certainly,  no  suffi- 
cient reason  for  the  extension  of  the  rule  which  gives  such  force 
to  the  penal  clause  and  so  little  to  the  provisions  of  the  statute 
requiring  the  bond,  to  the  statements  in  the  body  of  the  bond 
itself,  as  well,  as  to  the  provisions  of  the  healing  statute.  In 
view  of  the  fact  that  there  can  be  little  or  no  difficulty  in  ascer- 
taining the  object  the  parties  intended  the  bond  to  accomplish, 
and  of  the  broad  healing  statute,  there  is  reason  for  a  limitation 
of  the  rule,  or,  at  all  events,  for  a  refusal  to  further  extend  its 
operation. 

§  362.  The  Obligation  of  the  Bond — An  appeal  bond  is  not  an 
obligation  binding  the  obligors  to  pay  the  judgment  appealed 
from  at  all  events,  but  it  is,  it  may  be  said  in  a  general  way,  a 
contract  undertaking  that  the  party  appealing  shall  prosecute 
his  appeal  to  a  favorable  judgment  in  the  appellate  tribunal. 
If  the  judgment  from  which  the  appeal  is  prosecuted  is  reversed, 
the  obligors  are  relieved  from  liability.2  Where  the  appellant 
fails  to  prosecute  his  appeal  to  effect  the  bond  is  operative  al- 

1  Graeter   v.    De  Wolf,    112    Ind.   i;  Wilder,   13  Fed.    Rep.   707;    Farrar   v. 

Leggett  v.  Humphreys,  21   How.  U.  S.  United  States,  5  Peters,  373,  3S5. 

66;    United  States  v.  Rickett,  2  Cranch  2  Ring  v.  Mississippi   River    Bridge 

C.  C.  553;  Bank  of  Mount  Pleasant  v.  Co.,  57  Mo.  496;   Staler  v.   Howard,  7 

Sprigg,    1    McLean,   17S;   Lawrence  v.  Mo.  App.  377.     See  Sauer  v.  Griffin,  67 

United    States,    2    McLean,    581;    The  Mo.  654. 
Wanata,  5  Otto,  600,  617;   Wallace  v. 


312 


APPELLATE  PROCEDURE. 


though  the  appeal  is  disposed  of  by  an  order  of  dismissal.1 
The  sureties  become  liable  when  the  judgment  of  affirmance,  or 
other  judgment  fully  adverse  to  the  appellant,  takes  effect,  and 
the  obligee  is  not  bound  to  first  exhaust  the  property  of  the 
principal  obligor.2  In  general  the  effect  of  an  appeal  bond  is 
to  bind  the  obligors,  one  and  all,  to  perform  the  order  or  judg- 
ment affirmed,3  but  this  is  a  general  doctrine  and  can  not  be 
applied  in  every  instance,  since  much  depends  upon  the  sub- 
stantive provisions  of  the  bond  or  undertaking  filed  in  the  par- 
ticular case.4  It  is,  indeed,  not  possible  to  lay  down  a  general 
rule  that  will  justly  apply  to  all  cases,  for  there  are  cases  where 
the  appeal  presents  questions  not  involved  in  the  principal 
judgment  or  decree.  Thus,  in  the  case  of  an  appeal  by  a  jun- 
ior mortgagee,  against  whom  no  personal  judgment  is  rendered, 
it  would  be  manifestly  unjust  to  hold  that  the  appeal  bond 
bound  him  and  his  sureties  to  pay  the  claim  of  the  senior  mort- 
gagee.5 It  is  upon  the  same  general  principle  as  that  involved 
in  the  class  of  cases  to  which  we   have  just  referred  that  it  is 


1  Wood  v.  Thomas,  5  Blackf.  553; 
Legate  v.  Marr,  S  Blackf.  404;  Davis 
v.  Sturgis,  1  Ind.  213;  Reeves  v.  An- 
drew.-, 7  Ind.  207;  Keitzinger  v.  Rey- 
nolds, 11  Ind.  54,5;  Blair  v.  Kilpatrick, 
40  Ind.  312.  In  Gavisk  v.  McKeever, 
37  Ind.  4S4,  it  is  held  that  a  failure  to 
perfect  an  appeal  is  a  breach  of  the 
bond.  This  is  correct  upon  the  ground 
that  if  the  judgment  below  remains  ef- 
fective the  appellant  has  neither  per- 
formed what  the  judgment  required  nor 
prosecuted  his  appeal   to  effect.      See, 

erally,  Stelle  :■.  Lovejoy,  125  111. 
352.  354;  Pass  v.  Payne,  63  Miss.  239; 
Coon  v.  McCormick,  69  Iowa,  539.  But 
where  an  appeal  is  dismissed  for  some 
t  in  taking  it  and  a  second  is  taken 
and  successfully  prosecuted  we  -appose 
that  the  obligors  would  not  be  liable 
for  the  amount  of  the  judgment  subse- 
quently reversed. 

2  Railsback  v.  Greve,  58  Ind.  52. 
This    principle    was   applied   in  a  case 


where  the  decree  affirmed  bound  specific 
property.  Staley  V.  Howard,  7  Mo. 
A  pi'-  377- 

3  1 1  inkle  v.  Holmes,  S5  Ind.  405;  Ross 
v. Swiggett,i6  Ind. 433;  Hodge  v.  Hodg- 
don,  S  Cush.  294;  Erickson  v.  Elder,  34 
Minn.  370;  Whitehead  v.  Thorp.  22 
Iowa,  425.  See,  generally,  Mason  v. 
Smith,  11  Lea.  (Tenn.)  67,  69;  Matlock 
V.  Bank  of  Tennessee,  7  Yerg.  (Tenn.) 

9°'  95- 

4  Reitan    v.    Goebel,    35    Minn.    384; 

Sturgis  v.  Rogers,  26  I  ml.  1. 

5  Willson  v.  Glenn,  77  Ind.  585;  1 1  in- 
kle v.  Holmes,  85  Ind.  405;  Scott  v. 
Marchant,  SS  Ind.  349.  If  the  appeal 
of  a  junior  mortgagee  keeps  the  senior 
mortgagee  out  of  his  money,  then  it 
seems  that  the  former  should  recover 
interest  that  accrues  subsequent  to  the 
appeal.  If,  however,  the  appeal  of  the 
junior  mortgage  does  not  delay  the  en- 
forcement of  the  senior  lien,  it  would 
not  be  just  to  hold  him  for  interest. 


APPEAL  BONDS.  313 

held  that,  although  the  right  to  the  possession  of  land  is  in- 
volved in  an  action  in  which  a  judgment  appealed  from  is 
rendered,  a  bond  which  covers  only  the  money  judgment  ren- 
dered in  the  action  will  authorize  a  recovery  only  for  the  prin- 
cipal, interest  and  costs  of  such  judgment,  and  that  mesne  rents 
and  profits  can  not  be  recovered  in  an  action  upon  the  bond.1 
A  bond  may,  however,  be  so  framed  as  to  bind  the  obligors  for 
the  payment  of  rents  and  profits.  That  a  bond  may  be  so 
framed  as  to  cover  rents  and  profits  is,  indeed,  expressly  pro- 
vided by  the  statute.2  But  the  statute  applies  only  where  pos- 
session is  retained  or  held  during  the  pendency  of  the  appeal. 

§  363.  Mode  of  Executing  the  Bond — The  courts  generally  ap- 
ply a  very  liberal  rule  to  matters  respecting  the  signing  of  the 
bond  and  the  like.  The  place  where  the  names  of  the  obligors 
are  signed  to  the  bond  is  held  to  be  of  no  importance  provided 
it  can  be  inferred  that  the  signers  intended  to  bind  themselves 
as  obligors.3  It  is  held  that  the  appellants  need  not  sign  the 
instrument  if  it  be  signed  by  the  sureties.1  It  is,  of  course,  the 
right  of  an  appellee  to  require  that  the  bond  be  executed  by 
such  surety,  or  sureties,  as  the  law  requires,  and  the  failure  of 
the  appellant  to  furnish  a  bond  with  such  surety,  or  sureties, 
would,  in  a  case  where  the  bond  is  essential  to  the  appeal,  en- 
title the  appellee,  upon  motion,  to  a  dismissal  of  the  appeal,5 

1  Carver  v.  Carver,  115  Ind.  539.  etc.,  48  Mich.  641;   Seward  v.  Corneau, 

2  R.  S.  i88i,§  638.  The  statute  pro-  102  U.  S.  161;  Parks  v.  Hazlerigg,  7 
vides  that  a  bond  covering  waste  and  Blackf.  536;  State  v.  Soudriette  et  a/., 
damage  to  property,  as  well  as  mesne  105  Ind.  306;  Cooke  v.  Crawford,  1 
rents  and  profits,  may  be  required  of  a  Texas,  9,  46  Am.  Dec.  93. 

partv   who    retains    possession    of  the  5  Indianapolis,  etc.,  R.  Co.  v.  Beam, 

propertv  pending  the  appeal.     It  would  63  Ind.  490:   Indianapolis,  etc.,  R.  Co. 

undoubtedly  be  the  right  of  the  appellee,  v.  Beam,  64  Ind.  597;   McVey  v.  Heav- 

upon  a  proper  application,  to   compel  enridge,  30  Ind.  100.     An  attorney  may 

the  execution  of  a  bond  in  conformity  be  bound  as  surety  notwithstanding  a 

to  the  requirements  of  the  statute.  rule  of  court  prohibiting  attorneys  from 

3  Coyle  v.  Creyy,  34  La.  Ann.  339.  becoming  sureties  on  such  instruments. 

4  Thom  v.  Savage,  I  Blackf.  51;  Cov-  Ohio,  etc.,  v.  Hardy,  64  Ind.  454;  Banter 
ert  v.  Shirk,  58  Ind.  264;  Hinkle  v.  v.  Levi,  1  Chit.  713;  Harper  v.  Tahour- 
Holmes,  S5  Ind,  405;  Cody  v.  Filley,  4  din,  6  M.  &  S.  3S3.  Bond  not  effective 
Col.  342.  See,  generally,  Hedges  v,  until  delivered.  Covert  v.  Shirk,  58  Ind. 
Armistead,  60  Texas,  276;  Gage  Co.  r.  264.  Not  invalidated  because  it  appears 
Fulton,   16   Neb.   5;     Wood   v.  Wayne,  to    be    dated    subsequent    to    approval. 


31  1 


APPELLATE   PROCEDURE 


but  if  the  appellee  does   not  object,  a  bond  without   a  surety 
will  be  deemed  sufficient. 

364.  Form  and  Substance  of  the  Bond — As  we  have  hereto- 
fore  shown,  the  rules  of  the  unwritten  law,  as  well  as  the  pro- 
visions of  the  statute,  require  that  the  construction  of  the  bond 
shall  be  liberal  for  the  purpose  of  giving  it  the  effect  the  parties 
intended  it  to  have,  and  this  principle  of  construction  reaches 
matters  of  substance  as  well  as  matters  of  form.  The  statute 
in  terms  applies  both  to  matters  of  form  and  substance.1  There 
can.  of  course,  be  little,  if  any  difficulty,  in  stating  or  under- 
standing the  general  rule,  but  there  is  sometimes  difficulty  in 
applying  the  rule  to  a  particular  instance.  Thus,  while  a  bond 
may  bind  the  obligors  to  pay  the  judgment,  it  is  held  that  it 
does  not  bind  them  to  pay  it  without  relief  from  the  valuation 
or  appraisement  laws.2  So,  a  bond  given  in  an  appeal  by  one 
party  will  not  bind  the  sureties  to  answer  for  the  result  of  an 
appeal  taken  by  other  parties/5  On  the  other  hand,  one  who 
signs  as  surety  is  bound,  although  he  was  not  the  surety  desig- 
nated in  the  order  of  the  court.'1 

§  365.  Right  of  the  Appellee  to  require  a  well  framed  and  prop- 
erly executed  Bond — The  question  as  to  the  validity  and  effective- 
ness of  a  bond  assumes  a  different  form  in  a  case  where  the 
obligors  seek  to  escape  liability  from  that  which  it  wears  in  a 
case   where   the   appellee   appropriately   and   opportunely    de- 


James  v.  Woods,  65    Miss.  s-iS,  5   So. 
Rep.  106. 
1  R.  S.  i88i,§§  657,  658,  [221.     Ante, 

359- 

8  Ham  v.  Grew.  41  Ind.  531.  See,gen- 

erally,  Dingier  v.  Strawn,  36  111.  App. 
Crumley  v.  McKinney  (Texas).  9 
S.  W.  Rep.  157;  Chateaugay,  etc..  Co. 
Blake,  35  Fed.  Rep.  804;  Carver  v. 
Carver,  [15  Ind.  539,  iS  N.  E.  Rep.  37; 
1  ■  raid  v.  Gi  raid,  31  S.  C.  171,9  s.  E. 
Rep.  274;  United  States  v.  Drapier  (D. 
C).  iS  Wash.  L.J.  532;  Scott  v.  Mil- 
ton (Fla.).  7  So.  Rep.  32;  Bartlett's 
Appeal,  82  Me.  .mo. 


'  Sturgis  v.  Rogers,  26  Ind.  1.  i- 
See  Ward  v.  Buell.  [8  I  ml.  104;  Rice 
v.  Rice.  13  Ind.  562;  Burchard  v.  Cavins, 
77  Tex.  365,  1  1  S.  W.  Rep.  3S8;  Meade 
v.  Bartlett,  77  Tex.  vr'.  "  1  S.  W.  Rep. 
3SS. 

4  Buchanan  v.  Milligan,  125  Ind.  332. 
See,  generally,  Guez  v.  Dupuis,  152 
Mass.  15  (.  25  N.  E.  Rep.  740;  Granier 
v.  Louisiana,  etc.,  Co.,  4 2  La.  Ann.  SSo, 
S  So.  Rep.  614:  Allison  v.  Gregory 
(Texas),  [5  S.  W.  Rep.  410;  Anderson 
:  .  Hoard  (Minn.),  4S  X.  W.   Rep.  1022. 


APPEAL   BONDS.  SI  5 

mands  a  bond  properly  worded  and  executed.  The  cases  are 
radically  different  and  are  governed  by  very  different  rules. 
It  is  obvious  that  an  appellee  who  properly  and  duly  demands 
a  bond  executed  in  conformity  to  the  requirements  of  the  law 
occupies  a  very  different  position  from  that  occupied  by  parties 
who  seek  to  defeat  a  recovery  upon  the  bond.  Defects  not 
available  to  defeat  a  recovery  on  the  bond  may  be  sufficient  to 
entitle  an  appellee  to  a  new  bond.1  An  appellee  is  not  bound 
to  incur  the  risk,  or  the  expense  of  an  action  upon  an  imper- 
fect bond,  and  hence  he  may,  by  a  seasonable  and  appropriate 
application,  require  that  one  conforming  to  the  law  shall  be  ex- 
ecuted, while,  on  the  other  hand  it  is,  in  strictness,  the  duty  of 
the  party  who  prosecutes  the  appeal  to  execute  and  file  such  a 
bond  as  the  law  requires.  But  even  upon  the  demand  of  the 
appellee  an  order  will  not  be  granted  requiring  a  new  bond 
where  there  is  simply  an  immaterial  defect  or  omission  in  the 
bond.2 

§  366.  Anthority  of  Trial  Court  to  fix  the  Penalty  and  approve 
the  Sureties — Conclusiveness  of  the  order  of  approval — Where  the 
authority  to  fix  the  penalty  of  a  bond  is  vested  in  the  trial  court 
the  higher  court  will  not  review  the  action  of  the  lower  court 
in  fixing  the  penalty,  unless  that  action  is  specifically  challenged 
in  the  trial  court  and  an  exception  to  its  ruling  appropriately 
taken  and  saved.  Ordinarily  the  action  of  the  trial  court  in 
fixing  the  penalty  of  the  bond  concludes  the  parties,3  but  we 

1  Ruschaupt  v.  Carpenter,  63  Ind.  Williams  (Ky.),  12  S.  W.  Rep.  7,3$; 
359;  Harper  v.  Archer,  4  Sm.  &  Mash.  Southern,  etc.,  Co.  v.  Staley  (Texas), 
99,  S.  C.  43  Am.  Dec.  472;  James  v.  13  S.  W.  Rep.  4S0;  Howard  v.  Russell. 
Roberts,  7S  Tex.  670,  15  S.  W.  Rep.  11;  75  Texas,  171,  12  S.W.  Rep.  525;  Littell 
Frank  v. Thomas,  35  111.  App.  547.  See,  v.  Bradford,  S  Blackf.  1S5;  Ridabock  v. 
generally,  Richardson  v.  Richardson,  Levy,  8  Paige,  197,  35  Am.  Dec.  6S2; 
S3  Mich.  653,  47  N.W.  Rep.  500;  Corey  Shelton  v.  Wade,  4  Tex.  14S,  51  Am. 
v.  Lugar,  62  Ind.  60.  Dec.  722. 

2  Carmichael  v.  Hollowaj',  9  Ind.  519;  3  It  is,  of  course,  only  where  the  law 
McCall  v.  Trevor,  4  Blackf.  496;  Win-  commits  to  the  trial  court  the  duty  of 
ters  v.  Hughes,  3  Utah,  438,  24  Pac.  fixing  the  penalty  and  approving  the 
Rep.  907;  Moore  v.  Alerton  (Texas),  sureties  that  the  rule  applies.  Where 
15  S.  W.  Rep.  70;  Murphy  v.  Consoli-  the  appeal  is  in  term  and  the  procedure 
dated,  etc.,  Co.,  32  111.  612.  See,  upon  is  under  the  statute  governing  such  ap- 
the  general  subject,  Forbes  v.  Porter,  peals  authority  over  such  matters  exists 
23  Fla.  47,  1  So.  Rep.  336;   Mahlman  v.  in  the  trial  court.     R.  S.  1SS1,  §  63S. 


31(3  APPELLATE   PROCEDURE. 

suppose  that  if  the  appellee  should  properly  and  seasonably 
present  his  objection  to  the  ruling  of  the  trial  court,  it  would  be 
subject  to  review  upon  appeal  when  properly  presented.  It 
would,  however,  not  be  subject  to  review  as  part  of  the  main 
controversy,  but  it  may  be  made  a  matter  for  review  by  due  ob- 
jection in  the  trial  court  followed  by  the  appropriate  proceed- 
ings. This  is  so  upon  the  general  principle  that  rulings  of  a 
trial  court  may  be  presented  on  appeal,  and  for  the  further  rea- 
son that  the  appellate  tribunals  have  power  to  supervise  the 
proceedings  of  trial  courts.  But  where  no  objection  is  pre- 
sented to  the  trial  court  and  no  decision  is  requested,  or  ob- 
tained, then  the  higher  court  can.  not  disturb  the  ruling,  nor, 
indeed,  can  it  review  the  ruling  unless  the  question  is  properly 
saved  and  duly  presented  on  appeal.  The  general  doctrine 
applies  in  cases  where  sureties  are  accepted  by  the  trial  court 
pursuant  to  the  authority  conferred  by  law.1  But  the  rule  is  a 
general  one  and  subject  to  exceptions.  If,  for  instance,  the 
sureties  should  become  insolvent  after  their  acceptance  by  the 
trial  court,  it  seems  quite  clear  that  the  higher  court  may  require 
a  new  bond.  In  such  a  case  the  appellate  tribunal  acts  upon  a 
state  of  facts  different  from  that  acted  upon  by  the  trial  court, 
so  that,  after  all,  the  exception  is  apparent  rather  than  real. 
It  must  be  in  the  power  of  an  appellate  tribunal  to  make  such 
orders  when  conditions  change,  for  when  the  case  gets  into  that 
court  it  is  completely  out  of  the  jurisdiction  of  the  lower  court, 
and  that  court  can  take  no  steps  in  the  case.  It  may  be  added 
that  while  it  is  true  that  a  broad  discretion  is  vested  in  the  trial 
court  in  such  matters,  it  is  also  true  that  an  abuse  of  the  dis- 
cretion will  authorize  the  appellate  tribunal  to  interfere  in  case 
the  rulings  of  the  trial  court  are  appropriately  brought  before  it 
for  review.2 

1  Midland  Railway  Co.  v.Wilcox,  in  Stafford   v.  Union  Bank,  16   How.  275. 

Ind.561;  Eureka  Steam  Heating  Co.  v.  'The  action  of  the  trial  court  will, 

man,  67  Wis.  [18;  Bradlej'  v.  Gait,  however,  be  sustained  unless  it  is  clearly 

5  Mackev     l>.  C.  .  ^17;   Jerome  v.  Mc-  shown  thai  there  was  an  abuse  of  dis- 

\.  i\  Wall.  17;    Ex  parte  French,  cretion.     It  is  a  well   settled   rule  that 

100  U.  S.  1.    Martin  v.  Hazard  Powder  where  ruling  is  made  in  the  exercise  of 

13  1      -     [02;   New  Orleans  Co.  v.  a   discretionary     power    the    appellate 

Albro  Co.,    112    U.    S.   506.      Dnt  see  tribunals  will  interfere  only  where  it  is 


APPEAL  BONDS.  317 

§  367.  Demanding  a  New  Bond — Practice — Where  the  appellee 
desires  that  the  appellant  be  compelled  to  file  a  new  bond,  be- 
cause the  sureties  have  become  insolvent,1  or,  because  the  bond 
is  defective,  the  proper  course  for  him  to  pursue  is  to  file  a  mo- 
tion stating  the  relief  sought  and  the  grounds  upon  which  he 
bases  his  right  to  relief,  and  give  ten  days'  notice  of  the  motion 
to  the  appellant.  If  a  question  of  fact  is  presented,  then,  affida- 
vits must  be  filed  with  the  motion,  for  so  the  rules  of  the  court 
require.  It  may  not  be  out  of  place  to  say  that  it  is  within  the 
power  of  the  court  in  cases  where  a  motion  is  made  to  dismiss 
an  appeal,  to  require  a  new  bond  and  fix  a  time  for  filing  it,  and 
to  decline  to  dismiss  until  default  of  the  appellant  to  file  a  bond 
under  the  order.  This  has  been  the  practice  in  cases  where 
the  appellant  was  free  from  culpable  negligence.  The  safe 
course  for  the  appellant  where  the  bond  is  materially  defective 
or  the  sureties  are  insolvent  is  to  promptly  meet  the  motion  to 
dismiss  by  the  tender  of  a  new  bond,  for,  granting  time  after 
the  motion  to  dismiss  is  considered  is  a  matter  of  grace  and 
not  of  duty  on  the  part  of  the  court. 

§  368.  Estoppel  of  the  Sureties — As  a  general  rule  sureties  are 
estopped  by  the  recitals  of  the  bond.  Under  this  general  rule 
they  are  interdicted  from  denying  that  an  appeal  has  been 
taken,  except  where  the  bond  is  void.2  The  judgment  against 
the  principal  affirmed  on  appeal  is  conclusive  upon  the  sureties.3 
They  are  said  by  some  of  the  courts  to  be  regarded  as  strangers 
to  the  judgment,  and,  therefore,  precluded  from  attacking  it  ex- 
cept for  fraud.  It  is  evident  that  if  the  judgment  were  not  re- 
garded as  conclusive  settled  principles  would  be  violated  and 
litigation  be  almost  interminable.  The  principle  is  a  general 
one  and  is  sound,  since    to  permit    a  party  who  by  words  or 

clearly  made  to  appear  that  the  discre-  s  Hydraulic,  etc.,  Co.  v.  Neumeister, 
tion  was  abused  in  the  particular  in-  15  Mo.  App.  592;  McCormack  v.  Hub- 
stance,  bell,  4  Mont.  87.  But  while  it  is  true 
1  Ruschaupt  v.  Carpenter,  63  Ind.  359.  that  the  surety  is  estopped  by  the  judg- 
*  Adams  v.  Thompson,  iS  Neb.  541 ;  raent,  it  is  also  true  that  he  is  not  bound 
Meserve  v.  Clark,  115  111.  580.  See,  by  the  recital  of  the  bill  of  exceptions 
also,  McMinn  v.  Patton,  92  N.  C.  371;  that  he  executed  the  bond.  Hydraulic, 
Bowen  v.  Reed,  34  Ind.  430.  etc.,  Co.  v.  Neumeister,  supra. 


318 


APPELLATE  PROCEDURE. 


conduct  declares  that  he  has  appealed  to  deny  that  he  did  take 
an  appeal  would  be  to  violate  elementary  principles.1 

§  369.  By  whom  Bond  should  be  Approved — There  seems  to  be 
some  diversity  of  opinion  upon  the  subject  of  the  strictness  with 
which  the  statutory  provisions  respecting  the  approval  of  appeal 
bonds  must  be  observed.  It  is  substantially  agreed  that  the 
bond  must  be  approved  by  the  officer  or  tribunal  designated 
unless  the  approval  is  impliedly  or  expressly  waived.2  It  is 
evident  that  where  an  officer  or  tribunal  is  specifically  desig- 
nated the  provision  should  be  complied  with  in  cases  where  the 
party  for  whose  benefit  the  bond  is  executed  insists  upon  a  com- 
pliance with  the  law,  since,  to  hold  otherwise  would  be  to  de- 
clare that  the  courts  may  put  upon  one  officer  a  duty  enjoined 
by  law  upon  another  officer.3  A  bond  expressly  required  to  be 
executed  to  the  approval  of  an  officer  designated  by  statute  can 
not,  in  strictness,  be  said  to  be  legally  approved  when  the  ap- 
proval  is   made  by  some  other  officer,  for  it  is  cl'ear  that  only 


1  Krall  v.  Libbey,  53  Wis.  292.  The 
court,  in  the  case  cited,  discriminated  the 
case  from  ^Etna  Ins.  Co.  v.  Aldrich,  3S 
Wis.  107.  and  Mann  v.  .Ftna  Ins.  Co.,  38 
Wis.  1 14,  and  said:  "For  here  the  sureties 
absolutely  hound  themselves  to  pay  this 
very  judgment,  and  why  should  they 
not  stand  by  their  undertaking.  Under 
the  circumstances  we  certainly  see  no 
merit  in  their  demand  to  open  the  judg- 
ment and  retry  the  cause.  Were  there 
any  pretense  that  its  affirmance  was 
procured  through  collusion  of  the  par- 
t  ies  to  it,  the  sureties  would  stand  on  dif- 
ferent -round."  The  eases  of  Way  V. 
Lewis,  115  Mass.  26,  and  Cutler  v.  Kv 
ans,  Tbid,  27,  were  cited.    In  Wachstet- 

ter   l  .  State,    \1    Ind.    [66,  it   was  said    of 

an  appellant:     "He  ran   not  appeal  in 

fact  and  have  all  the  hem-tit  to  be  de- 
rived therefrom  and  then  be  heard  to 
say  because  of  some  informality  in  his 
proceedings  to  obtain  the  appeal,  he 
never  appealed   at  all,  and  thereby  es- 


cape the  consequences  of  his  appeal. 
The  appellant  affirmed  by  his  acts  and 
conduct  that  he  appealed  and  had  the 
benefit  of  his  appeal,  lie  can  not  now 
be  heard  to  affirm  the  contrary." 

2  Burk  v.  Howard,  15  Ind.  219;  Jones 
v.  Droneberger,  23  Ind.  74;  Scotten  v. 
l)ivclhiss,46  Ind.  301 ;  McCloskev  v.  In- 
dianapolis, etc.,  Co.,  87  Ind. 20;  O'Reilly 
7>.  Edington,  96  U.  S.  724;  Haskins  v. 
St.  Louis,  etc.,  Co.,  109  U.  S.  106;  First 
National  Bank  v.  Omaha,  96  U.  S.  737; 
Putnam  v.  Boyer,  140  Mass.  235;  Averil 
v.  Dickerson,  1  Blackf.  3;  Hardin  v. 
Owings,  1  Bibb.  (Ky.)  214;  Knight  v. 
People,  11  Col.  308,  17  Pac.  Rep.  902. 
That  an  express  approval  may  be  waived 
eems  to  be  the  prevailing  doctrine. 
Buchanan  v.  Milligan,  125  Ind.  332. 

;1  Bui  the  position  of  the  obligees  is 
not  the  same  as  that  of  the  obligors, 
and  to  the  latter  the  rule  does  not  al- 
ways apply. 


APPEAL  BONDS.  319 

the  officer  appointed  by  law  has  authority  to  approve.1  It  is  the 
right  of  a  party  to  have  a  bond  approved  by  the  officer  desig- 
nated by  law,  for  the  reason  that  if  that  officer  is  guilty  of  neg- 
ligence an  action  may  lie  upon  his  official  bond,  whereas,  if  one 
who  has  no  authority  at  all  in  the  premises  undertakes  to  ap- 
prove a  bond  there  would  probably  be  no  liability  on  his  official 
bond.  But  however  this  may  be,  it  can  not  be  doubted  that  a 
party  who  duly  asserts  his  rights  is  entitled  to  have  the  law 
substantially  obeyed.  It  is,  of  course,  competent  for  the  one 
party  to  waive  an  approval,2  and,  on  the  other  hand,  a  party 
who  has  received  <«x  benefit  from  the  bond,  or  who  has  been  the 
cause  of  injury  or  delay  to  another,  may  be  estopped  to  make 
any  question  as  to  the  approval  of  the  bond. 

§  370.  Informal  or  Irregular  Approvals — It  is  not  just,  nor  is  it 
consistent  with  principle,  to  apply  the  same  rule  to  the  obligors 
and  the  obligees  in  an  appeal  bond  in  cases  where  the  law  has 
not  been  followed  in  approving  the  appeal  bond,  for  there  is  an 
important  difference  in  the  positions  of  the  respective  parties.3 
Much  of  the  confusion  that  exists  is  owing  to  the  failure  to  ob- 
serve the  difference  in  the  position   of  the   parties,  and,  in   a 

1  The  general  principle  is  illustrated  that  the    approval  by  the  party  would 

by  the  case  of  Crumley  v.  Hickman,  92  preclude  him  from  objecting  to  the  bond 

lnd.  3SS,    wherein    it    was  held  that  a  upon  any  ground   except  that  of  fraud 

bond    required    to    be  executed  in  one  or  mistake. 

tribunal  could  not  be  executed  in  an-  3  Upon  the  general  subject  see,  Clapp 
other.  See,  also,  Shepherd  v.  Dodd,  15  v.  Freeman,  16  R.  I.  344;  Hemstead  v. 
Ind.  217;  McVey  v.  Heavenridge,  30  Cargill  (Minn.),  4S  N.  W.  Rep.  686; 
lnd.  100;  Scotten  v.  Divelbiss,  46  Ind.  Chemin  v.  The  city  of  Portland,  19 
301.  These  cases  mark  the  difference  Ore.  512,  24  Pac.  Rep.  103S;  McCracken 
between  submitting  a  bond  to  a  tribunal  v.  The  Superior  Court,  86  Cal.  74,24 
not  authorized  to  take  or  approve  it  and  Pac. Rep.  S45 ;  Pacific,  etc., Co.  v.  Bolton, 
the  cases  where  an  insufficient  bond  is  89  Cal.  154,  26  Pac.  Rep.  650;  Hanaw  ». 
filed  with  the  proper  officer.  It  is  ob-  Bailey,  S3  Mich.  24.  Waiver  of  objec- 
vious  that  there  is  a  material  difference  tion  to  the  approval  of  the  bond.  Win- 
between  submitting  a  bond  to  an  officer  ona.  etc.,  Co.  v.  First  National  Bank, 
having  no  authority  to  accept  it,  and  33  111.  App.  630.  Withdrawal  of  ob- 
the  errors  of  an  officer  clothed  with  jections.  Manning  v.  Gould,  90  N.  Y. 
general  authority  in  such  matters.  476,  64  How.  Pr.  429,  3  Civ.  Pro.  58,  re- 

*  An  approval  of  a  bond  by  the  party  versing  47  N.Y.  Sup.Ct.  387;  Ginsburg 

or  his  attorney  is  sufficient.     Goodwin  v.  Kuntz,  15  N.  Y.  Supp.  237. 
v.  Fox,   120  U.    S.   775      We  suppose 


320  APPELLATE   PROCEDURE. 

great  measure,  this  confusion  may  be  dissipated  by  clearly 
marking  the  line  between  the  cases  where  the  obligees  season- 
ably and  appropriately  object  to  the  mode  of  approval  and  the 
cases  where  the  obligors  after  an  affirmance  seek  to  escape 
liability.  If  a  bond  is  specifically  and  promptly  objected  to 
there  is  reason  for  declaring  that  the  appellant  is  in  fault  for 
not  substantially  pursuing  the  course  prescribed  by  law,  but 
where  the  appeal  is  prosecuted  to  a  final  termination  the  sure- 
ties have  little  or  no  reason  to  complain  that  their  principal 
did  not  strictly  follow  the  law.  It  is  not  easy  to  perceive  any 
just  reason  for  relieving  sureties  because  of  errors  in  the  ap- 
proval of  the  bond,  for  it  is  not  unreasonable  to  require  them  to 
take  care  that  the  principal  does  what  the  law  commands.1 
Even  where  objections  are  presented  in  due  season  and  form 
by  the  appellee,  it  is  only  substantial  and  probably  injurious 
departures  from  the  mode  prescribed  by  statute  that  should  be 
permitted  to  prevail.  Harmless  errors  are  disregarded  else- 
where in  procedure  and  so  they  should  be  in  proceedings  rela- 
tive to  the  approval  of  appeal  bonds.  Our  decisions  indicate 
that  the  court  considers  the  true  rule  to  be  that  departures  from 
the  statute  which  do  no  injur}'  may  be  disregarded.2  Other 
courts  declare  and  enforce  the  same  general  doctrine.3  It  is, 
indeed,  not  easy  to  find  any  valid  reason  for  heeding  errors  in 
the  proceedings  of  parties  or  officers  under  statutes  (such  as 
ours),  which  everywhere  declare  that  unsubstantial  and  harm- 
less errors  and  irregularities  shall  be  disregarded. 

1  Granger  v.  V-.nl.cr,  142  Mass.  186.  3  Asch  v.  Wiley,  10  Neb.  41;  Kim- 
Where  the  failure  to  have  the  bond  ap-  brough  t\  Pitts,  63  Ga.  496;  Holly  v. 
proved  by  the  proper  officer  is  attribut-  Perry,  94  X.  C.  30;  Taylor  z>.  State.  16 
able  to  the  fault  of  the  party  who  pros-  Texas     App.    514.       Put     some    of  the 

:s  the  appeal — as  it   generally  is —  courts   require    that  the    provisions   of 

it  would    lie   suffering   him   to  take  ad-  the  statute  he  followed   with    consider- 

vantagej    of  his    own   wrong   to  relieve  able    strictness.     Travis    v.   Travis,   48 

him  from  liability.  Hun.  343;    Julian    :\   Rodgers,  S7   Mo. 

2  McCrory  v.  Anderson,  103  Ind.  12;  229;  Henderson  t>. Benson, 41  Miss. 218; 
Miller  v.  O'Reilly.  84  Ind.  [68;  Ante,  Dunkel  v.  Wehle,  13  Abb.  N.  Cas.  (;S. 
§  366.  Analogous  cases  declare  ami  il-  It  is  held  by  some  of  the  courts  that 
lustrate  the  general  principle.  State  :•.  the  approval  of  the  officer  extends  sim- 
Trout,75lnd. 563;  Ensley  v. McCorkle,  ply  to  the  sufficiency  ot'  the  sureties, 
74  Ind.  240;  Stone  7'.  State,  75  Ind.  235;  not  to  form  or  substance  of  the  bond. 
Hawes  v. Pritchard,  71  Ind.  166;  Miller  People  v.  Leaton,  25  111.  App.  45;  Peo- 
v.  McAllister,  59  Ind.  491.  pie  V.  Leaton,  121  111.  666. 


APPEAL  BONDS.  321 

§371.  Approval  may  be  Implied — It  is  not  always  necessary 
that  the  officer  charged  with  the  duty  of  approving  a  bond 
should  do  so  expressly,  for  an  approval  may  be  implied  from 
circumstances.1  As  an  approval  may  be  implied  it  must  nec- 
essarily follow  that  an  approval  may  be  proved  by  parol,  and 
that  the  parties  are  not  limited  to  written  evidence.  So  it  has 
been  held.2  This  is  in  harmony  with  the  doctrine  that  the  filing 
of  a  paper  in  a  case  may  be  proved  by  parol,  for  it  is  the  act 
and  not  the  mere  indorsement  that  controls.3  The  cases  estab- 
lishing the  doctrine  just  stated  are  so  closely  analogous  to  the 
cases  wherein  the  question  concerns  the  approval  of  an  appeal 
bond  that  they  may  be  properly  considered  as  establishing  the 
general  doctrine  here  stated. 

§  372.  Effect  of  the  Approval — Where  the  trial  court  is  vested 
with  authority  over  the  subject  its  approval  of  a  bond  extends 
both  to  the  sufficiency  of  the  bond  and  the  solvency  of  the  sure- 
ties. As  we  have  elsewhere  shown,  the  judgment  of  the  court 
in  such  a  case  prevails  on  appeal  unless  there  is  a  clear  abuse 
of  discretion  or  the  trial  court  has  acted  upon  an  erroneous 
principle.4  Where  a  ministerial  officer  approves  a  bond  the 
approval  goes  only  to  the  sufficiency  of  the  sureties  and  does 
not  make  an  instrument  valid  and  effective  that  in  law  is  inope- 
rative.5 We  suppose  that  the  approval  of  a  bond  by  the  trial 
court  is  not  absolutely  conclusive  even  as  to  the  form  and  effect 
of  the  instrument,  for  it  seems  clear  that  if  a  bond  radically  in- 
sufficient should  be  approved,  the  appellee  might,  03^  the  appro- 
priate procedure,  call  in  review  the  action  of  the  trial  court. 

§  373.  Evidence  of  Filing  and  Approval — Unless  the  evidence  of 
the  filing  or  approval  of  an  appeal  bond  is  required  by  statute  to 
be  in  writing,  parol  evidence  of  the  filing  or  approval  is  compe- 

1  Ohio,  etc.,  R.  R.  Co.  v.  Hardy,  64  v.  Cook,  13  Barb.  326;  Johnson  r.Craw- 
Ind.  454;  Hanaw  v.  Bailey,  83  Mich.  24.  fordsville,  etc.,  11    Ind.   2S0;  Miller  v. 

2  Woodburn  v.  Fleming,   1  Blackf.  4;  O'Reilly,  S4  Ind.  168,  169. 
Miller  v.   O'Reilly,  S4   Ind.   16S;  Mc-  *  Ante,  §366. 

Closkey    v.  Indianapolis,  etc.,   Co.,  S7  5  People  v.  Leaton,  25  111.  App.  45; 

Ind.  20.  Harris  v.  Regester,  70  Md.  109,  16  Atl. 

3  Naylor  v.  Moody,  2  Blackf.  247;  Rep.  3S6;  People  v.  Leaton,  121  111.666. 
.Engleman  v.   State,  2  Ind.  91;  Bishop 

21 


322  APPELLATE    PROCEDURE. 

tent.  Where  the  statute  imperatively  requires  written  evidence, 
that  evidence  must,  of  course,  be  produced.  But  where  there 
is  no  such  statutory  requirement  the  question  is  one  of  fact,  and 
evidence  admissible  upon  similar  questions  of  fact  may  be  heard.1 
In  truth,  the  real  and  meritorious  question  in  such  cases  is 
whether  the  bond  was  or  was  not  approved,  and  the  mode  of 
approval  is  not  of  controlling  importance,  except,  perhaps,  in 
cases  where  the  mode  is  definitely  prescribed  by  statute  or  by 
a  rule  of  court. 

§  374.   The  Bond  as  essential  to  the  effectiveness  of  an  Appeal — 

In  a  former  chapter  we  incidentally  considered  the  subject  of 
appeal  bonds  and  stated  as  our  conclusion  that  where  a  bond 
is  required  by  the  statute,  as  one  of  the  steps  to  be  taken  in 
perfecting  an  appeal,  then  it  is  essential  to  the  effectiveness  of 
the  appeal,  but  where  it  is  not  required  an  appeal  may  be  pros- 
ecuted without  filing  a  bond.2  Whether  a  bond  is  or  is  not  es- 
sential to  an  effective  appeal  is  to  be  determined  from  the  stat- 
ute governing  appeals  in  the  particular  class  of  cases,  for  in 
many  cases  there  may  be  an  appeal  without  a  bond,  while  in 
others  a  bond  is  required.  In  the  majority  of  cases  a  bond  is 
only  required  where  a  supersedeas  or  stay  of  proceedings  is 
sought,  but  this  is  by  no  means  a  universal  rule.  As  we  shall 
hereafter  see,  an  appeal  does  not  ordinarily  operate  to  stay  pro- 
ceedings on  the  judgment,  but  in  order  to  have  that  effect  it 
must  usually  be  supplemented  by  other  proceedings.  Confus- 
ion is  avoided  by  keeping  clearly  in  mind  these  general  rules: 

1  Woodbum  v.  Fleming,  i  Blackf.  4;  tained."     This  general  doctrine  was  as- 

McCloskey  v.  Indianapolis,  etc.,  Co., 87  serted  in  Simpson   tr.  Minor,  1  Blackf. 

Ind.    20*,    Miller  v.    O'Reilly,  S4    Ind.  229.    See,  also,  Frazer  v.  Smith, 6  Blackf. 

16S;  McCrory   v.  Anderson,  103  Ind.  210;  Lacy  v.  Fairman,    7  Blackf.  558. 

12.     In  Woodburn  v.  Fleming,  supra,  In  speaking  of  the  filing  of  an  instru- 

it  was  said:      "  Whether  the  bond  was  ment  it  was  said  in  Slate  v.  Foulkes,  94 

executed    in    the    clerk's    office    or    not  Ind.    493,   496:     "The    indorsement    is 

is  a    plain  question  of  fact.     Although  not  the  material   thing;  the  act  of  de- 

the  bond  does  not  show  the  plaee  where  positing  the  paper  with  the  proper  of- 

the  bond  was   executed,  yet  if  the  ap-  ficer  is  the  essential  element  of  the  act 

pedants   can    prove   by  other  evidence  of  filing." 

that  they  are  within  the  law  the  court  2  Ante,    Chapter    XIII,    "Modes    of 

will  permit  them  to  do  so;  if  they  can  Appeal  in  Civil  Actions." 
not,  the  motion  to  dismiss  must  be  sus- 


APPEAL  BONDS  323 

I.  That  a  bond  is  not  ordinarily  essential  to  the  effectiveness 
of  an  appeal  unless  made  so  by  the  statute.1  2.  A  bond  is 
ordinarily  required  to  secure  a  stay  of  proceedings.  These, 
we  repeat,  are  general  rules  to  which  there  are  exceptions,  but 
we  need  not  note  the  exceptions  as  the  fact  that  these  rules 
prevail  is  all  that  we  desire  to  here  make  clear,  insomuch  as 
this  serves  our  immediate  purpose,  which  is,  to  mark  the  dis- 
tinction between  the  effectiveness  of  an  appeal  to  secure  a  re- 
view of  the  rulings  of  the  trial  court  and  its  effectiveness  in 
staying  proceedings  on  the  judgment. 

§  375.  Bond  not  ordinarily  essential  to  Jurisdiction — As  a  gen- 
eral rule  a  bond  is  not  essential  to  appellate  jurisdiction  al- 
though a  bond  may  be  required  by  the  statute  which  confers 
the  right  of  appeal  as  one  of  the  steps  in  the  procedure.  But,  in 
saying  that  a  bond  is  not  ordinarily  essential  to  jurisdiction,  we 
do  not  mean  to  be  understood  as  implying  that  a  bond  is  never 
essential  to  the  effectiveness  of  an  appeal,  nor  do  we  mean  to 
imply  that  a  bond  may  not  be  made  essential  to  jurisdiction. 
Where  a  bond  is  made  essential  to  jurisdiction  then  the  failure 
to  file  it  may  be  fatal.2 

§  376.  Appearing  without  Objecting — Waiver — In  the  very  great 
majority  of  cases  an  appearance  without  objecting  to  the  failure 
to  file  a  bond  operates  as  a  waiver.  The  party  who  desires  to 
take  advantage  of  the  failure  to  file  the  proper  appeal  bond 
should  move  for  a  dismissal  of  the  appeal  and  give  notice  of  the 
motion.3  Ordinarily  a  dismissal  may  be  prevented  by  interposing 

1  As  we  have  elsewhere  said,  it  is  State  ^.United  States,  8  Blackf.  252. 
within  the  power  of  the  legislature  to  See,  generally,  Stafford  v.  Union  Bank 
prescribe  the  conditions  upon  which  of  Louisiana, 16  How. (U.S.)  135;  Silsby 
appeals  may  be  taken  and  prosecuted.  v.  Foote,  20  How.  (U.  S.)   290;   Hard- 

2  M\rgatt  v.  Ingham,  Wright  (Ohio),  away  v.  Biles,  1  Sm.  &  M.  (Miss.)  657; 
176;  McLana  v.  Russell,  29  Texas,  127;  Skidmore  v.  Davies,  10  Paige,  316. 
Law  v.  Nelson  (Col.),  24  Pac.  Rep.  2;  3  Critchell  v.  Brown,  72  Ind.  539; 
Thompson  v.  Thompson,  24  Wis.  515;  Murdock  v.  Brooks,  3S  Cal.  596;  Kirk- 
Wood  v.  Wall,  5  La.  Ann.  179;  Clinton  patrick  v.  Cooper,  89  111.  210;  Cothren 
v.  Phillips,  7  T.  B.  Monroe,  1  iS;  Young  v.  Connaughton,  -'4  Wis.  134;  Thomp- 
v.  Mason,  8  111.  55;  Steamboat  Lake  of  son  v.  Lea,  28  Ala.  453;  Blake  v.  Lyon, 
the  Woods  v.  Shaw,  1  Greene  (Iowa),  etc.,  Co.,  75  N.  Y.  611;  Dillingham  v. 
91;  French  v.  Snell,  37  Me.  100;  Com-  Skein,  Hempst.  1S1.  Notice  of  such  a 
monwealth    v.    Durham,   22  Pick.   11;  motion  i-<  required  by  Rule  XIV. 


APPELLATE   PROCEDURE. 

an  oiler  to  file  a  bond  accompanied  by  an  appropriate  tender 
of  a  bond  duly  executed,1  but  where  a  time  is  imperatively  des- 
ignated within  which  a  bond  must  be  filed  a  failure  to  file  the 
bund  within  the  time  will  be  fatal  to  the  particular  appeal,2  un- 
less the  effect  of  the  failure  be  obviated  b}r  some  valid  excuse.3 

377.  Amending  Defective  Bonds — A  defective  appeal  bond 
may  be  supplied  by  one  framed  and  conditioned  as  the  statute 
requires,  and  when  the  defects  are  seasonably  and  appropri- 
ately remedied  the  appeal  will  not  fail.4  Where  the  parties  act 
in  good  faith  and  with  reasonable  promptness  the  courts  deal 
with  them  liberally.  The  courts,  it  has  been  often  said,  are 
reluctant  to  permit  an  appeal  to  fail  where  there  has  been  no 
culpable  fault,  although  there  may  be  some  errors  or  irregu- 
larities. 

§  378.  Motion  to  Dismiss  because  of  Defective  Bond — A  motion  to 
dismiss  an  appeal  because  of  a  defect  in  the  bond,  or,  because 
of  a  failure  to  file  it  as  the  law  requires,  should  be  reasonably 
specific.5  The  rules  of  good  pleading  require  that  motions  of 
this  character  shculd  fully  and  clearly  point  out  the  defects  or 
irregularities  so  that  the  adverse  party  may  be  informed  what 
questions  he  is  expected  to  meet.  These  rules  also  require  that 
the  defects  or  irregularities  specified  should  be  regarded  as  the 
only  ones  upon  which  the  complaining  party  will  insist,  and  to 
them  he  should  be  held. 

§  379.  Promptness  Required  in  Asking  Leave  to  Amend — Where 
an  objection  to  a  bond  is  made  and  the  appellant  desires  to 
remedy  the  defects  or  irregularities,  he  should  proceed  with 

1  Anson  v.  Blue  Ridge,  etc.,  Co.,  23  O'Reilly  v.  Edington,  96  U.S.  724;  Ter- 
How.  1;  Swasey  v.  Adair,  S3  Cal.  136;  ritory  v.  Milroy,  7  Mont.  559,  19  Pac. 
1>  en  v.  Hemphill,   Hempst.  154.  Rep.   209;    Miller  v.  O'Reilly,  S4  Ind. 

2  King  v.  McCann,  25  Ala.  471 ;  Mays  168;  Murphy  v.  Steele,  51  Ind.  Si. 
v.  King,  28  Ala.  690.  Bonds   may   often   be   amended   or  re- 

8  Brobsl  v,  Brobst,  2  Wall.  96;  Sey-  placed.     Morrison    v.    State,   40    Ark. 

mour  v.  Freer,  5  Wall.  S22.     See,  gen-  448;    Grant  v.  Connecticut,    etc.,  Co., 

erallv,  Thomas  v.  Georgia,  etc.,  Co.,  38  28  Wis.  3S7;  Pitnam  v.  Mvrick.  i6Fla. 

Ga    222.  401;  McClelland  v.  Allison,  34  Kan.  155. 

1  Seward  v.  Corneau,  102  U.  S.  161;  5  Bazzo  v.  Wallace,  16  Neb.  293. 


APPEAL  BONDS. 

reasonable  promptness  and  diligence.  While  the  courts  are, 
as  we  have  said,  very  liberal  in  allowing  amendments,1  still, 
they  will  not  permit  them  where  the  appellant  is  guilty  of 
laches.  If  the  request  is  properly  and  seasonably  made  a  bond 
may  be  substituted  for  one  previously  filed.2  Leave  to  amend 
or  to  file  a  new  bond  should  be  asked.3 

§380.  Enforcement  of  the  Bond — In  one  of  the  decisions1  a 
very  strict  rule  is  laid  down  respecting  the  enforcement  of  ap- 
peal bonds,  and  if  that  decision  be  followed  to  its  logical  con- 
sequences it  is  necessary  for  a  plaintiff  in  an  action  upon  an 
appeal  bond  to  aver  that  the  penalty  of  the  bond  was  fixed  by 
the  court,  for,  according  to  that  decision,  the  averment  of  ap- 
proval by  agreement  of  parties  does  not  dispense  with  an  order 
fixing  the  penalty.  We  venture  to  suggest  that  the  decision 
goes  too  far,  inasmuch  as  it  completely  ignores  the  doctrine  of 
estoppel  and  attaches  no  importance  to  the  agreement  of  the 
parties.5     It  is  impossible  to  resist  the  conclusion  that  the  court 

1  As  illustrating  the  rules  and  prac-  ing  of  the  case  of  Jones  v.  Droneberger, 
tice  generally,  see,  Hawthorne  v.  East  23  Ind.  74,  that,  "  We  are  not  required 
Portland,  12  Ore.  210;  George  v.  Lutz,  in  the  present  case  to  decide  to  what 
35  Texas,  694;  Ferguson  v.  Dent,  29  extent  defects  may  be  waived  by  the 
Fed.  Rep.  1;  Kerr  v.  Martin,  122  Pa.  obligee  in  an  appeal  bond,  as  the  party 
St.  436,  15  Atl.  Rep.  860;  Branger  v.  who  sues  on  such  a  bond  must  either 
Buttrick,  30  Wis.  153;  Gilbank  v.  Steph-  show  that  it  has  been  executed  accord- 
enson,  30  Wis.  155;  Gavisk  v.  McKee-  ing  to  the  statute  or  that  such  defect 
ver,  37  Ind.  484;  O'Suflivan  v.  Connors,  has  been  either  expressly  or  by  impli- 
22  Hun.  137;  Carroll  v.  Jacksonville,  2  cation  waived."  See  op.  p.  ^37. 
Ill.App.  4S1;  Mcllhaney  t\  Holland,  m  5  Goodwin  v.  Fox,  120  U.  S.  775.  It 
Pa.  St.  634.  Excuse  for  not  filing  in  seems  clear  that  where  the  parties  agree 
time,  what  is.  Architectural,  etc.,  Co.  to  the  sufficiency  of  a  bond  the  obligors 
v.  Brooklyn,  85  N.  Y.  652.  can  not  take  advantage  of  defects  after 

2  State  v.  Thompson,  Si  Mo.  163;  an  affirmance  of  the  judgment  appealed 
Russell  v.  Bartlett,  9  Wis.  556;  Helden  from.  The  recital  of  the  bond  that 
v.  Helden,  9  Wis.  557.  there  was  an  appeal  estops  the  parties 

s  Pulte  v.  Wayne  Circuit  Judge,  47  from  denying  that  fact,  and  the  corn- 
Mich.  646.  plaint  in  the  case  cited  averred  that  the 

4  Buchanan  v.  Milligan,  68  Ind.  118.  judgment  had  been  affirmed.    The  bond 

The  only  case  cited  is  Ham  v.  Greve,  was    the    foundation    of  the  complaint 

41  Ind.  531,  but  that  case  does  not  sup-  and  was  a  proper  exhibit.     As  it  was  a 

port  the  conclusion  asserted.     In  Ham  proper  exhibit  its  recitals  were  of  con- 

v.  Greve,  supra,  there  was  no  question  of  trolling  effect.     Avery    v.   Dougherty, 

waiver.     The  court  there  said,  in  speak-  102  Ind.  443;  Watson,  etc.Co.  T'.Casteel, 


326  APPELLATE  PROCEDURE. 

in  the  case  under  examination  lost  sight  of  the  doctrines  of 
waiver  and  estoppel,  and  thus,  as  we  believe,  fell  into  error. 
We  think  that  where  the  plaintiff  in  an  action  upon  an  appeal 
bond  states  facts  showing  that  the  bond  was  taken  pursuant  to 
the  statute  or  that  compliance  with  the  statute  was  waived  by 
agreement,  that  there  was  an  affirmance  of  the  judgment  from 
which  the  appeal  was  prosecuted,  and  that  the  judgment  has 
not  been  paid,  he  shows  a  -prima  facie  right  of  action.1  It  is, 
as  all  the  well  considered  cases  show,2  the  policy  of  the  law 
to  uphold  appeal  bonds  and  not  to  suffer  them  to  be  treated  as 
of  no  effect  where  there  is  a  waiver,  an  estoppel,  or  a  substan- 
tial compliance  with  the  statute.  We  suppose  it  to  be  clear 
that  the  court  would  not  entertain  a  motion  to  dismiss  an  appeal 
in  a  case  where  the  appellee  has  agreed  to  the  sufficiency  of  the 
bond,  and,  certainly,  there  is  much  less  reason  for  denying  a 
motion  to  dismiss  in  such  a  case  than  there  is  for  adjudging 
the  bond  valueless  upon  the  demand  of  the  obligors. 

§  381.  What  will  release  Sureties — It  is  said  in  some  of  the 
cases  that  whatever  releases  the  principal  releases  the  surety,3 
but  it  seems  to  us  that  this  is  a  broader  statement  of  the  rule 
than  can  be  safely  made.  We  are  strongly  inclined  to  the 
opinion  that  the  discharge  of  the  principal  under  a  bankrupt 
law  or  an  insolvent's  act  would  not  release  the  surety,  but  at 
present  it  is  not  important  to  consider  this  question  since  we  have 
no  law  of  that  kind.  It  may,  however,  be  safely  said  that  the 
general  rule  is  that  whatever  releases  the  principal  releases  the 
surety.  The  rule,  like  most  general  rules,  is,  doubtless,  subject 
to  exceptions.  But  it  does  not  follow  that  the  principal  must 
be  released  in  order  that  the  sureties  shall  be  discharged,  for 

73   Ind.  296;     Lentz  v.  Martin.  75   Ind.  v.  Ray,  1  Idaho   (X.   S.)  705;    Blake  v. 

22S.      It     was     properly    held    that    the  Lyon,  75  X.  V.  (<i  1 ;    Mix  V.  People,  86 

transcript    did    not    aid    the    pleading.  111.  329;    Dyer  -'.  Bradley,  89   Cal.  557, 

Hufff.  City  of  La  Fayette,  [08  Ind.  14;  26  Par.  Rep.  511.     It  may  be   true  that 

Huseman  :•.  Sims.  n>|  Ind.  317.  the   complaint    in    Buchanan  v.    Milli- 

1  Buchanan  v.  Milligan,  12-  Ind.  332.  gan, 68  Ind.  11S,  is  lacking  in  certainty, 

*  Adams   v.  Thompson.  18   Neb.  541;  but   the   remedy  for  such   a  defect  is  by 

1    Manf.  Co.   v.  Barrett.  94   X.  C.  motion  and  not  by  demurrer. 
219;   State  :•.  Byrd,93  N.C.624;  Miller         3  Cook  v.  King,  7  111.  A pp.  549. 
7.  Holding,  5    Houst.  (Del.)  494;    Ray 


APPEAL  BONDS.  327 

the  principal  may  remain  bound  and  the  sureties  released. 
Thus,  a  change  in  the  judgment  appealed  from  made  by  agree- 
ment of  the  appellant  and  the  appellee  and  without  the  consent 
of  the  sureties,  will  release  them.1  If  time  is  given  the  principal 
without  the  consent  of  the  surety  the  latter  is  released.  The 
instances  to  which  we  have  referred  are  nothing  more  than  ex- 
amples of  the  familiar  doctrine  that  a  surety  has  a  right  to 
stand  upon  his  contract,  and  that  a  contract  for  an  extension  of- 
time  made  with  the  principal  without  the  surety's  consent  ex- 
onerates him  from  liability.  It  is  barely  necessary  to  suggest 
that  performance  by  the  surety,  or  due  tender  of  performance, 
where  a  tender  can  be  well  made,2  or  a  reversal  of  the  judg- 
ment, will  release  the  surety. 

§  382.  Surety's  Right  of  Subrogation — A  surety  in  an  appeal 
bond  who  fully  discharges  the  obligation  which  rested  upon  the 
principal  obligor  is  not  only  relieved  from  liability,  but  he  is 
also  entitled  to  be  subrogated  to  the  rights  of  the  creditor  whose 
claim  he  pays.  This  doctrine  is  impliedly  asserted  in  all  of  the 
cases  referred  to  in  the  note  to  the  preceding  section  ;  it  is,  in- 
deed, the  groundwork  of  the  reasoning,  and  it  is  expressly  as- 
serted in  others.  The  doctrine  has  been  declared  and  enforced 
by  our  own  court.3  A  reversal  of  the  judgment  in  whole  op- 
erates, of  course,  as  a  release  of  the  sureties,  and,  as  it  has 

1  Leonard  7'.  Gibson,  6  111.  App.  503.  87;     Post    v.   Losey,     ill     Ind.    75,  60 

2  In  Sharp  v.  Miller,  57  Cal.  415,  it  Am.  Rep.  677;  Musgrave  v.  Glas- 
was  held  that  where  there  was  a  valid  gow,  3  Ind.  31;  Wilson  v.  McVey,  83 
tender  and  refusal  it  was  equivalent  to  Ind.  10S,  citing  Brandt  on  Suretyship, 
payment  and  released  the  sureties.  The  296;  Spurgeon  v.  Smiths,  114  Ind.  453, 
court  cited   Solomon  v.  Reese,  34  Cal.  and  auth.  p.  456. 

28,  36;  Hayes  v.  Josephi,  26  Cal.  535.  3  Peirce  v.  Higgins,  101  Ind.  178.  In 
There  is  much  force  in  the  reasoning  Opp  v.  Ward,  125  Ind.  241,  it  was  held 
of  the  court  in  the  last  named  case,  for  as  that  a  guarantor  for  the  performance 
the  surety  is  entitled  to  be  subrogated  of  a  contract  upon  which  judgment  was 
and  to  proceed  without  delay  against  obtained  against  the  principal  and  from 
the  principal  the  refusal  of  the  creditor  which  the  latter  had  unsuccessfully  ap- 
to  accept  the  money  is  prejudicial,  pealed,  was  entitled,  after  paying  the 
The  authorities  sustain  the  doctrine,  judgment  creditors,  to  be  subrogated  to 
Joslyne  v.  Eastman,  46  Yt.  258;  Lewis  tlu-ir  rights  and,  by  virtue  of  such  sub- 
s'. Van  Dusen,  25  Mich.  351;  Hamp-  rogation,  could  maintain  an  action  upon 
shire,  etc..   Bank   v.   Billings,    17   Pick,  the  bond  against  the  surety. 


328  APPELLATE  PROCEDURE. 

been  held,  the  reversal  of  a  judgment  in  part  operates  to  re- 
lease the  sureties  to  the  extent  that  it  relieves  the  principal. 

§  383.   Measure  of  Recovery— There  is  little  difficulty  in  deter- 
mining the  amount  of  the   recovery   where  the  judgment  ap- 
pealed from  is  for  a  designated  sum   of  money,  for  the   surety 
ordinarily  becomes  bound  for  principal,  interest  and  costs  of 
the  judgment  he  undertakes  to  pay.1     This  is  the  general  rule, 
but  "the  rule  is  subject  to  the  exceptions,  heretofore  noted,  that 
the  recovery  can  not  exceed  the  penalty  of  the  bond  and  that 
entirely  new  and  substantial  stipulations  can  not  be  imported 
into  the  bond  by  the  courts.     The  general  rule  is  not   affected 
by  the  fact  that  there  may  be  some  other  security  for  the  debt.1' 
It  is  the  general  rule  in  all  classes   of  cases   that  the  bond,  if 
properly  framed,  covers  actual  loss.      But  it  is  often  difficult  to 
determine  what  shall  be  considered  an   actual  loss  within  the 
meaning  of  the  law.     Attorneys'  fees  are  not  recoverable  in  an 
action  on  the  bond.3     Rents   and    profits   of   land  may,  under 
our    statute,   be  recovered    in  action   upon    the  bond,4  but,  as 
held  in  a  case  already  referred  to,  not  in  excess  of  the  penalty 
expressly  named  in  the  bond.     Rents  and  profits  for  property 
of  which  the  obligor  retains  possession  may  be  recovered  in  a 
case   where   the   appeal   operates  to  stay   proceedings  upon  a 
bond  properly  framed,  for  so  our  statute  provides.5     The  statute 
to  which  we  refer  embraces   both   real   and  personal  property 
and  gives  a  comprehensive  effect  to  an  appeal  bond  framed  in 
accordance  with  its  provisions.     While  the  statute  is  to  be  taken 
into  consideration  in  construing  a  bond  purporting  to  be  exe- 
cuted pursuant  to  its  provisions,0  it  can  not,  according  to  the 
doctrine  of  our  cases,  control  the  express  terms  and  conditions 

1  Graham  v.  Swigert,  12  B.  Mon.  522;      Ward,    125    Ind.     241,    244;      Stults    V. 
Ives   v.  Merchants'  Bank,  12   How.  (U.     Zahn,  117  Ind.  297. 

S.i  159;     Sessions  v.  Pintard,  iS  How.  5  R.  S.  1SS1,  §  638. 

(U.  S.)  106;  Talbot  v.  Morton,  5  Litt.  6  Ante,  $$   358,  359,  360.     It   is  diffi- 

320;    Many  v.  Sizer,  6  Gray,  141.  cult,  if.  indeed,  it  is  not  impossible,  to 

2  Sessions   v.    Pintard,   iS   How.  (U.  conceive  how   a    bond   framed   in   sub- 
S.)  106.  stantial   conformity  to  the  statute   re- 

:t  Noll  -'.  Smith,  68  Ind.  1S8.  ferred  to  in  the   preceding  note  can  be 

*  Opp  v.  Ten  Eyck,99  Ind.  315;  Hays     controlled  by  the  clause  designating  the 
v.     Wilstach,     101    Ind.     100;     Opp  v.     penalty. 


APPEAL  BONDS. 


329 


of  the  bond.1  The  provisions  of  the  statute  are  mandatory,  for 
they  are  expressed  in  very  strong  and  explicit  words,  and,  in 
the  proper  case,  it  is  the  right  of  the  appellee  to  demand  that 
there  shall  be  no  stay  of  proceedings  unless  a  bond,  such  as  the 
statute  prescribes,  is  executed.2 


1  Ante,  §  360,  note. 

2  The  provisions  of  the  statute  to 
which  especial  reference  is  made  read 
thus:  "And  if  the  appeal  is  taken  from 
a  judgment  for  the  recovery  of  real 
property,  or  the  possession  thereof,  by 
the  party  against  whom  the  judgment 
for  the  recovery  is  rendered,  then  the 
condition  of  the  bond  shall  further  pro- 
vide, that  the  appellant  shall  also  pay 
all  damages  which  may  be  sustained  by 
the  appellee  for  the  mesne  profits,  waste 
or  damage  to  the  land  during  the  pend- 
ency of  the  appeal,  and  if  from  a  judg- 
ment for  the  recovery  or  return  of  per- 


sonal property,  or  for  such  property  or 
its  value,  then  that  if  he  deliver  or  re- 
turn the  property  he  will  also  pa}'  the 
reasonable  value  of  its  use,  and  any 
damage  it  may  sustain  during  the  pend- 
ency of  an  appeal."  R.  S.  1SS1,  §  368. 
There  is  some  obscurity  in  the  language 
of  the  statute,  but  there  can  be  no  doubt 
as  to  its  general  scope  and  character. 
While  it  may  be  difficult  to  give  a  con- 
struction to  some  of  the  words  em- 
ployed, there  can  be  none  in  determin- 
ing the  chief  object  intended  to  be  ac- 
complished. 


CHAPTER  XVIII, 


STAY   OF  PROCEEDINGS— SLPKRSEDEAS. 


§  3S4- 

3S5 
3S6 

3S7 
3SS 

339 
390 
391 

39-- 


Bond  required  to  secure  stay  of 
proceedings. 

Effect  of  an  appeal  in  term. 

Stay  by  order  of  appellate  tri- 
bunal. 

Supersedeas — Deli  nit  ion. 

Application  for  a  supersedeas — 
Brief. 

Effect  of  a  supersedeas — Gene- 
rally. 

Stay  obtained  by  one  of  several 
appellants — Effect  of. 

Supersedeas  does  not  confer  a 
right  to  do  what  decree  tor- 
bids. 

Effect  of  a  supersedeas  upon 
self-executing  judgments. 


§  393.  Effect  of  a  supersedeas  where 
the  judgment  is  self-executing 
in  part. 

394.  Duration  of  tin    stay  in  appeals 

from  final  judgments. 

395.  Duration  of   the  stay  in  appeals 

from  interlocutory  order-. 

396.  Sureties  on  a  supersedeas  bond. 

397.  No    liability    where    there   is   no 

injury,  and  no  promise  to  pay 
the  judgment. 
39S.    Trial  court    can    not  control  a 
supersedeas. 

399.  Setting    aside     a    supersedeas — 

Practice. 

400.  Motions   to   dismiss   an    appeal 

and  motions  to  vacate  a  super- 
sedeas. 


§  384.  Bond  required  to  secure  Stay  of  Proceedings — It  is  a  gen- 
eral rule  of  wide  sweep  that  there  can  be  no  stay  of  proceed- 
ings where  there  is  no  bond  or  undertaking.  An  appeal  does 
not  necessarily  stay  proceedings,  for  there  may  be  an  effective 
appeal,  and,  yet,  the  right  to  enforce  the  judgment  or  decree 
appealed  from  remain  unimpaired.  This  doctrine  prevails  in 
our  State  and  in  mam'  other  jurisdictions.1  It  is  safe  to  say 
that  the  rule  is  that  in  all  appeals  from  judgments  in  ordinary 
civil  actions  a  stay  of  proceedings  is  granted  only  where  the 


1  Jones  v.  Droneberger,  23  Ind.  74; 
Burl  v.  Hoettinger,  28  Ind.  214;  Rusch- 
aupt  v.  Carpenter,  63  [nd.359;  Heaton 
v.  Knowlton,  65  Ind.  255;  Burkf,  How- 
ard.15  Ind. 219;  Espy  v.  Balkum,45  -^'a- 
256;  Central  Union, etc.,Co.  v. Andrews, 
34  Kan.  ^y.     Eakle   :•.   Smith.  24    Mil. 


339,  361 ;  Kitchen  v.  Randolph,  93  U.  S. 
86;  Sage  v.  Central  R.  Co..  93  U.S.  412; 
Hickox  v.  Elliott,  28  Fed.  Rep.  117. 
Bui  merely  tiling  a  bond  does  not  con- 
stitute  an  appeal.  Pratt  v.  Western 
Stage  Co.,  26  Iowa.  241.  A  bond  may  he- 
waived.     Wilson  t'.  Dean,  10  Ark.  308. 


(330) 


STAY  OF  PROCEEDINGS— SUPERSEDEAS.  331 

proper  bond  or  undertaking  is'  filed.  There  are,  as  we  have 
seen,  cases  where  special  statutory  provisions  give  a  stay  of 
proceedings  without  a  bond  ;  there  are  others,  as  appeals  from 
interlocutory  judgments,  and  appeals  in  term,  where  a  bond  is 
essential  to  the  effectiveness  of  the  appeal,  but,  as  a  general 
rule,  a  bond  is  essential  to  a  stay  of  proceedings  and  only  es- 
sential where  that  is  the  object  sought  to  be  accomplished. 

§  385.  Effect  of  an  Appeal  in  Terra — An  appeal  in  term  duly 
perfected  operates  as  a  stay  of  proceedings  in  ordinary  civil 
actions,  except,  possibly,  in  cases  especially  provided  for  in  a 
peculiar  statutory  provision.1  The  statute  expressly  makes  an 
appeal  in  term  operate  as  a  stay  of  proceedings  in  ordinarv 
cases,  and  there  is  no  room  for  doubt  upon  the  general  ques- 
tion.2 The  filing  of  the  bond  is  held  to  be  a  condition  prece- 
dent to  a  right  to  insist  upon  a  stay.3  In  the  case  referred  to 
in  the  note  the  court  declared  that  it  is  the  filing  of  the  bond 
which  consummates  the  appellee's  right  to  a  stay  of  execution 
and  ties  the  hands  of  the  appellant.  But  it  was  declared  in 
equally  emphatic  terms  in  another  case  that,  "An  appeal 
prayed  for  in  term  time  and  perfected  within  the  time  limited 
suspends  all  further  proceedings."4  It  may  be  affirmed  that 
where  an  appeal  in  term  is  perfected  by  the  performance  of  the 
acts  required  to  make  such  an  appeal  effective,  the  appeal  of 
its  own  force  and  vigor  operates  as  a  stay  of  proceedings.  It 
is  implied  that  the  transcript  must  be  filed  in  the  higher  court 
within  sixty  days  after  the  bond  is  filed  as  that  act  is  essential 
to  the  effectiveness  of  the  appeal.  If  the  transcript  is  not  filed 
within  the  time  limited  the  appellee  may  have  execution  by 
complying  with  the  provisions  of  the  statute,  but  the  failure  to 


1  R.  S.  iSSi,  §  631.     This  provision  section  638  or  not,  but  it  would  seem 

reads  thus:     "The  appeal  in  such  case  that  it  has  that  effect, 

shall    not    stay    proceedings    upon    the  2  R.  S.  1SS1,  §  63S. 

judgment  unless  so  ordered  by  the  Su-  3  Mitchell    v.   Gregory,  94  Ind.   363, 

preme  Court  or  some  judge  thereof."  citing    Burk    :•.    Howard,    is    Ind.  219; 

The  case  referred  to  is  that  of  "a  re-  Jones  v.  Droneberger,  23  Ind.  74:   Ham 

served  question  of  law"  under  section  v.  Greve,  41    Ind.    1531, and  Willson    z\ 

■630.    It  is  difficult  to  determine  whether  Binford,  54  Ind.  569. 

this  peculiar  provision  restricts  those  of  *  June  v.  Payne,  107  Ind.  307. 


:):)■_>_  APPELLATE  PROCEDURE. 

file  the  transcript  does  not  preclude  the  appellant  from  perfect- 
ing an  appeal  upon  notice.1 

§  386.  Stay  by  order  of  the  Appellate  Tribmial — The  only  mode 
by  which  a  stay  of  proceedings  can  be  procured  in  ordinary 
civil  actions,  except  by  perfecting  an  appeal  in  term,  is  by  ob- 
taining an  order  from  the  appellate  tribunal  having  jurisdiction, 
or  from  one  of  the  judges  of  such  tribunal.2  It  is  but  stating 
this  doctrine  in  another  form  to  say  that  there  is  only  "  one  in- 
stance in  which,  in  view  of  the  appeal,  the  proceedings  in  the 
lower  court  can  be  stayed  '  without  the  order  of  the  Supreme 
Court  or  a  judge  thereof  in  vacation/  namely  :  '  When  the  ap- 
peal is  granted  during  the  term,  and  bond  riled  with  such  pen- 
alty and  surety  as  the  court  shall  approve,  within  such  time  as 
the  court  shall  direct.'  "3  To  obtain  a  stay  of  proceedings  in 
cases  where  there  is  not  a  perfected  term  appeal  the  appellant 
must  file  a  bond  either  with  the  clerk  of  the  trial  court  or  the 
clerk  of  the  Supreme  Court  as  the  appellate  tribunal  may  direct, 
but,  wherever  the  bond  is  filed,  the  order  staying  the  proceed- 
ings on  the  judgment  or  decree  from  which  the  appeal  is  prose- 
cuted must  be  obtained  from  the  proper  appellate  tribunal  or 
one  of  its  members.1 

§  387.  Supersedeas — Definition — The  order  of  the  court  or 
judge  evidenced  by  the  certificate  of  the  clerk  is  commonly 
called  a  supersedeas.5  Originally  the  term  "supersedeas"  as 
used  in  legal  procedure,  signified  a  writ  issued  as  a  command 
to  stay  ordinary  proceedings  at  law/1     It  means,  it  may  be  said 

1  R.  S.  iSSi,  §  638,  639.  Co.  v.  Michigan  Central  R.  Co.,  2  Ind. 

1  Burk    v.    Howard,     15     Ind.    219;  670. 

Mitchell  v.  Gregory,  94  Ind.  363;   June  5  The  word  "supersedeas"  is  now  so 

v.  Payne,  107  Ind.  307.  thoroughly  anglicized  that  we  think  it 

Burk  v.   Howard,   15   Ind.   219,221.  unnecessary  to  italicize   it  as  a  foreign 

Since     the    creation    of   the    Appellate  word. 

Courl  by  the  legislature,  the  power  to  6  Perteet  v.  People,  70  111.  171,  177. 
issue  a  supersedeas  is  not  vested  ex-  In  strictness  the  word  means  to  set 
clusively  in  the  Supreme  Court  or  its  aside  or  annul,  but  this  is  not  the  mean- 
judges,  for  the  authority  to  issue  such  ing  ordinarily  assigned  it  in  appellate 
writs  or  orders  is,  by  necessary  impli-  procedure.  William-  t'.Bruffy,  102  U- 
tion,  conferred  upon  thai  tribunal.  S.  24S;  Smith  v.  Western   Union  Tel. 

4  R.  S.    ism.   ,;,c,  641,   642;     Mills   v.  Co.,  S3  Ky.  269,  271;   Sage  v.  Central 

Conner,  1  Blackf.  2;    Northern  Ind.  R.  R.  Co.,  93  U.  S.  412,  417. 


STAY  OF  PROCEEDINGS— SUPERSEDEAS.       333 

in  a  general  way,  as  now  usually  employed,  an  order  or  com- 
mand issued  from  an  appellate  tribunal  interdicting  proceedings 
upon  a  judgment  or  decree  from  which  an  appeal  is  prosecuted. 
It  issues  as  an  incident  of  an  appeal  but  is  not  always  an  insep- 
arable incident. 

§  388.  ApplicatioD  for  a  Supersedeas — Brief — As  a  supersedeas 
is  an  incident  of  an  appeal  it  can  not  be  issued  until  an  appeal 
has  been  filed.  It  is  not  necessary  that  the  appeal  should  be 
perfected  by  notice,  for  it  has  been  the  uniform  practice  to  issue 
the  supersedeas  at  the  inception  of  the  jurisdiction  of  the  tribunal 
having  power  to  order  the  stay.  Jurisdiction  must,  however,  exist 
in  the  tribunal  from  which  the  supersedeas  is  asked.  As  jurisdic- 
tion must  exist  in  the  tribunal  and  as  an  -assignment  of  errors 
is  essential  to  jurisdiction  no  supersedeas  can  issue  until  the 
transcript  is  filed  and  an  assignment  of  errors  duly  made.1  An 
application  for  a  supersedeas  must  be  accompanied  by  a  brief 
referring  to  the  record  by  pages  and  lines  and  pointing  out  the 
errors  upon  which  the  appellant  relies.2  But,  as  the  supersedeas 
brief  is  onlv  intended  to  show  that  the  appeal  is  not  a  vexatious 
one  entirely  destitute  of  merit,  no  great  strictness  is  required, 
nor  does  such  a  brief,  unless  full  enough  to  meet  the  require- 
ment of  the  law  and  the  rules  of  practice,  dispense  with  a  full 
brief  upon  the  merits  of  the  case.  The  brief  filed  with  an  ap- 
plication for  a  supersedeas  is  for  a  temporary  purpose,  that  is, 
to  satisfy  the  court  or  judge  that  a  stay  of  proceedings  should 
be  ordered  ;  it  is  not  required  for  the  purpose  of  securing  a  re- 
versal. Nor  does  the  court  in  granting  a  supersedeas  intimate 
any  decision  upon  the  merits  of  the  appeal.3 

§  389.  Effect  of  a  Supersedeas — Generally — An  order  of  super- 
sedeas issued   by  an  appellate  tribunal   does  not  undo  or  set 

1  Henderson  v.  Halliday,   io  Ind.  24.  of  controlling   authority.     See,  gener- 

This  case,  as  we  have  elsewhere  shown,  ally,   Kendall   v.  Wilkinson,  4  E.  tv  B. 

has  been  steadily  followed.     See  Law-  6S0. 

rence  v.  Wood,  122  Ind.  452;  Bacon  v.  2  Rule  XX. 

Withrow,    no     Ind.    94;     Smythe    v.  3  The  Northern  Ind.  R.  Co.  v.  Mich- 

Boswell,  117   Ind.  365,  and  authorities  igan    Central   R.   Co.,    3   Ind.  8;    The 

cited    p.  367.     In    Lawrence    ;•.  Wood,  Northern,  etc.,   Co.   V.  Michigan   Cent. 

supra,  the  case  of  Harshman  v.  Arm-  Co.,  2  Ind.  670. 
strong,  43  Ind.  120.  is  shown  not  to  be 


[3  \  APPELLATE   PROCEDURE. 

aside  what  has  been  done  by  the  trial  court,  but,  in  general,  it 
simply  checks,  or  stays,  further  proceedings  on  the  judgment 
or  decree  appealed  from  and,  hence,  is  essentially  preventive.1 
Our  code  adds  something, — and  that  of  a  very  material  na- 
ture,— to  the  effect  ordinarily  assigned  to  an  order  of  super- 
sedeas for  it  declares  that  a  levy  made  upon  execution  shall  be 
relinquished.2  This  provision  extends  the  operation  of  the 
order  and,  of  necessity,  makes  ineffective  acts  done  under  and 
founded  exclusively  upon  the  levy  unless,  possibly,  in  cases 
where  the  writ  has  fully  performed  its  functions  prior  to  the 
stay.3  As  a  general  rule  a  supersedeas  operates  only  upon  the 
decree  or  judgment  from  which  the  appeal  is  prosecuted  and 
does  not  affect  the  rights  of  persons  not  directly  bound  by  such 
judgment  or  not  bound  by  it  as  privies  in  blood  or  estate. 
Thus,  it  does  not  suspend  the  collection  of  the  fees  and  costs 
of  officers  or  witnesses  by  a  fee  bill.4 

§  390.   Stay  obtained  by  one  of  Several  Appellants— Effect  of— 

Where  a  judgment  several  in  its  effect  is  rendered  against 
more  than  one,  a  stay  obtaiiied  by  one  does  not  operate  in 
favor  of  all.  A  bond  securing  a  stay  for  one  will  not  confer  a 
right  upon  the  others.  If  the  plaintiff  so  elects  he  may  issue 
execution  against  those  who  have  not  obtained  a  stay  of  pro- 
ceedings.5 

§  391.  Supersedeas  does  not  confer  a  right  to  do  what  the  Decree 
forbids — Where  a  decree  specifically  forbids  a  party  from  doing 
a  designated  act  he  can  not  by  obtaining  a  supersedeas  acquire 
a  right  to  do  the  forbidden  act.  Thus,  a  supersedeas  confers 
no  right  to  do  an  act  prohibited  by  a  decree  awarding  an  in- 

1  Northwestern,  etc.,  Co.  v.  Lander,  6  Ind.525;  Buchanan  v .  Logansport,  etc., 

Minn.  564;     Mayor,  etc.,  v.  Shaw,    14  Co.,    71     Ind.    265,    268;    Scheible    v. 

Ga.   162;    Low  d.  Adams,  6  Cal.  277;  Slagle,  S9  Ind.  323,  32S;   Brooks  v.  Har- 

Curtis    v.   Root,  28    111.   367;     State  v.  ris,  41  Ind.  390;   State  v.  Krug,  94  Ind. 

Kirkpatrick,  54  Iowa,  373;     Runyon  v.  366;    Blackburn   v.    Crowder,  10S  Ind. 

Bennett,  4   Dana,   598,    S.   C.   29  Am.  238,  241, 

.  431;     Board  of  Commissioners  v.  *  R.  S.  1SS1,  §  642. 

Gorman,  19  Wall.  661,664.    The  super-  s  Porter  v.  Parker,  6  Texas,  23. 

sedeas   does   not    impair   the   validity  of  *  Mackison  v.  Clegg,  S3  Ind.  135. 

the  judgment.     Mull  v.   McKnight,  67  5  Freeman  on  Executions,  §  32. 


STAY  OF  PROC  E EDI  N GS— SU  PE  R  S  E  DEAS. 

junction  forbidding  the  act.1  It  is  obvious  that  to  assign  to  a 
supersedeas  such  force  as  would  make  it  so  operate  as  to  give 
a  party  power  to  do  what  the  decree  prohibits  would  make  it  a 
remedy  creating  affirmative  rights  of  a  positive  nature  rather 
than  a  preventive  order  or  writ.  This  would  be  to  completely 
transform  one  remedy  into  another  of  an  essentially  different 
class.  To  adjudge  that  a  supersedeas  can  create  a  positive  and 
affirmative  right  would  be,  in  effect,  to  annul  the  decree  of  the 
lower  court  before  a  hearing  upon  the  merits  is  had,  and  this 
the  policy  of  the  law  prohibits.  The  principles  declared  in 
analogous  cases  forbid  that  the  merits  of  an  appeal  should  be 
determined  upon  a  preliminary  application,  and  they  forbid, 
also,  that  the  judgment  of  the  trial  court  should  be  nullified 
without  a  consideration  of  the  merits  in  due  course  and  upon 
full  argument. 

§  392.   Effect  of  a  Supersedeas  upon  Self-Executing  Judgments — 

Where  a  judgment  or  decree  executes  itself,  that  is,  where  no 
act  of  a  ministerial  officer  is  necessary  to  put  it  into  effect,  the 
supersedeas  does  not  alter  the  state  of  things  created  by  the 
judgment  from  which  the  appeal  is  prosecuted.2  This  doctrine 
is  strikingly  illustrated  by  the  case  wherein  it  was  held  that  a 
judgment  suspending  an  attorney  from  practice  executes  itself, 
except  as  to  costs,  and  the  granting  of  a  supersedeas  only  sus- 
pends the  right  to  enforce  collection  of  costs,  and  does  not  al- 
low the  attorney  to  practice  pending  the  appeal.3     In  another 

1  Stater-.  Chase,  41  Ind. 356;  Central  time  of  perfecting  such  appeal,  but  not 
Union,  etc.,  Co.  v.  State,  no  Ind.  203;  as  they  were  before  the  order  or  decree 
Hawkins  v.  State,  126  Ind.  294;  Heinlen  appealed  from  was  entered."  See,  also, 
v.  Cross,  63  Cal.  44;  Sixth  Avenue,  etc.,  Burrall  z/.Vanderbilt,  1  nosw.643;  Clark 
Co.  v.  Gilbert,  etc.,  Co.,  71  N.  Y.  430;  v.  Clark,  7  Paige  Ch.  607;  Burr  v. 
Graves  ?'.  Maguire,  6  Paine  Ch.  379;  Burr,  10  Paige  Ch.  166;  Cook  v.  Dick- 
Robertson  v.  Davis,  14  Minn.  554.  erson.  1  Duer,679;   First  National  Bank 

2  Padgett    :■.   State,  93    Ind.  396,397;  v.  Rogers,  13  Minn.  407. 

Walker  v.  Heller,   73    Ind.  46,51.     In  »  Walls  v.  Palmer,  64  Ind.  493.  What 

Graves    v.   Maguire,  6    Paige   Ch.   379,  is  said  in  the  case  cited  as  to  suspend - 

Chancellor  Walworth  said:     "The  ef-  ing  right  to  collect  costs  must  upon  the 

feet  of  an  appeal  after  the  proper  steps  authority  of  Mackison  v.  Clegg,  83  Ind. 

have  been  taken  to  render  it   a  stay  of  135,  lie  understood  to  mean  costs  of  the 

proceedings  upon  the  order  or  decree  parties    and    not    fees    ot    witne>ses    or 

appealed  from,  is  to   leave  the  proceed-  officers. 
ings  in  the  situation   they   were  at  the 


336  APPELLATE  PROCEDURE. 

case  it  was  held  that  an  appeal  from  an  order  refusing  to  ad- 
mit a  will  to  probate,  although  so  perfected  as  to  operate  as  a 
supersedeas,  did  not  preclude  a  party  from  proceeding  to  ob- 
tain partition  pending  the  appeal,  notwithstanding  the  fact  that 
in  the  event  of  a  reversal  the  party  would  not  be  entitled  to 
partition.1  A  still  later  case  enforces  this  principle.  In  the 
case  to  which  we  refer  a  judgment  in  partition  was  declared  to 
be  self-executing  and  it  was  adjudged  that  an  appeal  which 
operated  as  a  supersedeas  did  not  preclude  the  parties  from 
securing  partition  pursuant  to  the  order.2 

§  393.  Effect  of  Supersedeas  where  the  Judgment  is  Self-Execut- 
ing in  Part — It  follows  as  a  necessary  conclusion  from  the  gen- 
eral doctrine  that  a  supersedeas  operates  to  stay  an  execution 
but  does  not  operate  upon  a  self-executing  judgment,  that  where 
the  judgment  in  part  requires  an  execution  for  its  enforcement 
and  in  another  part  does  not  require  such  a  writ,  the  super- 
sedeas may  operate  only  upon  part  of  the  judgment.  This 
doctrine  has  been  directly  asserted  by  our  court,3  and,  as  we 
shall  show  further  on,  in  discussing  the  particular  topic,  exerts 
an  important  effect  upon  the  rights  and  liabilities  of  the  sure- 
ties in  a  supersedeas  bond.  But  a  self-executing  judgment 
may  be  stayed  and  the  situation  as  fixed  by  the  judgment  ap- 
pealed from  remain  unchanged,  as,  for  instance,  where  an  un- 
successful appellant  is  enabled  by  a  stay  of  proceedings  to  re- 
tain possession  of  personal  property,  for,  in  such  a  case,  an 
action  would  lie  upon  the  bond  for  loss  resulting  from  the  de- 
preciation of  the  property  pending  the  appeal. 

1  Burton  v.  Burton,  28  Ind.  342.     In  In  Carver  v.  Carver,  115   Ind.  539,  542, 

the  case  cited  it  was  said:     "The  only  in  speaking  of  a  judgment  such  as  that 

effect  of  an  appeal   to  this  court  is  to  under  discussion,  it  was  said:     "  It  was 

stay  execution  upon  the  judgment  from  not  possible  to  institute  any  proceeding 

which    the   appeal    was   taken.     In    all  upon  the  judgment  aside  from  the  cxu- 

other  respects  the  judgment  until  an-  cution,  and,  therefore,  the  supersedeas 

nulled  or  reversed  is  binding  upon  the  and  bond  did   not  stay  any  proceeding 

parties  as  to  every  question  directly  de-  except  an  execution."     Haves  v.  Hayes, 

cided."     This  statement  is  correct  but  75   Ind.  395,  supports    the    doctrine  of 

subject  to  the  exception  that  a  super-  the  text,  and  the  decision  in  Meyer  v. 

sedeas  operates  under  our  statute  to  re-  State,  125  Ind.  335,  extends  the  doctrine. 
linquish  a  levy.  3  Carver  v.  Carver,  115  Ind.  539. 

1  Randies    v.    Randies.   67    Ind.    434. 


STAY  OF  PROCEEDINGS— SUPERSEDEAS.  337 

§  394.   Duration  of  the  Stay  in  Appeals  from  Final  Judgments — A 

stay  of  proceedings  in  cases  of  appeals  from  final  judgments 
continues  until  the  case  is  fully  disposed  of  by  the  appellate 
tribunal  and  the  opinion  certified  to  the  clerk  of  the  trial  court. 
The  statute  declares  that  it  shall  operate  until  "the  final  de- 
termination of  the  case,  unless  otherwise  ordered  by  a  court  or 
judge  thereof,"1  but  as  the  statute  also  gives  sixty  days  in  which 
to  file  a  petition  for  rehearing,  and  as  the  clerk  is  not  authorized 
to  officially  issue  the  necessary  certificate  to  the  clerk  of  the 
trial  court  until  the  time  for  filing  a  petition  has  expired,  except 
in  cases  specially  enumerated,  it  is  evident  that  the  judgment 
of  affirmance  or  reversal  is  not  such  a  final  determination  of  the 
case  as  would  entitle  the  appellee  to  treat  the  stay  as  at  an  end 
and  sue  upon  the  bond. 

§  395.   Duration  of  the  Stay  in  Appeals  from  Interlocutory  orders 

— The  statute  limits  the  stay  in  cases  of  appeals  from  interlocu- 
torv  orders  to  thirty  days,  but  provides  that  it  may  be  extended 
by  the  court  or  one  of  its  judges.2  As  the  right  to  a  stay  is  cre- 
ated and  governed  by  statute3  its  effectiveness  can  not  endure 
beyond  the  period  designated  by  the  legislature,  unless  there  is 
an  order  duly  extending  the  time.  It  is  necessary,  therefore, 
to  apply  to  the  court,  or  one  of  its  judges,  whenever  a  stay  for 
a  longer  time  than  that  fixed  by  the  statute  is  desired.     It  is 

1  R.     S.     1SS1,    §§    662,    5828;    Rule  different  doctrine  seems  to  be  laid  down, 

XXXVIII.     In    Railsback    v.    Greve,  but  that  case  evidently  did  not  receive 

49   Ind.  271,   it  was  held   that   a  com-  very  careful  consideration. 

plaint  on  a  bond  must   show  when  the  2  R.  S.  1SS1,  §  64S. 

judgment    was    affirmed    or   when    the  3  In  Sage  v.  Central  R.  Co.,  93  U.  S. 

opinion   and    affirmance   were  filed  in  412,  417,  it  was  said:  "A  supersedeas  is 

the  office  of  the  clerk  of  the  trial  court,  a  statutory  remedy.   It  is  only  obtained 

It  was  there  said:  "  There  was  no  right  by  a  strict  compliance  with  all  the  re- 

to  proceed  to  collect  or  demand  pay-  quired  conditions,  none  of  which  can  be 

ment  of  the  affirmed   judgment    until  dispensed   with."     Hogan    :•.   Ross.   11 

after  the  sixty  days  given  for  filing  the  How.  294,  297;   Railroad  Co.  v.  Harris, 

petition  had  expired  and  a  certified  copy  7  Wall.  574;   Slaughterhouse    Case-.  10 

of  the  opinion  and  judgment  of  affirm-  Wall.   273.  2S9,   291;   Kitehen  v.  Ran- 

ance  had  been  filed  in  the  office  of  the  dolph,  3  Otto,  S6,  SS;  Goddard  v.  Ord- 

clerk  below."   The  court  cited  Poppen-  way,  4  Otto,  672;    Arnold  v.  Frost,  9 

husen  v.  Seeley,  41  Barb.  450.    In  Hesh-  Benedict,  2(7,  2(19. 
ion   v.   Scott,   94  Ind.  570,  a  somewhat 

22 


338  APPELLATE  PROCEDURE. 

within  the  power  of  the  court  to  prolong  the  time  upon  its  own 
motion,  but  it  is  not  bound  to  do  so  in  the  absence  of  an  appli- 
cation, nor  is  it,  of  course,  always  bound  to  do  so  upon  petition 
or  motion. 

§  396.  Sureties  on  Supersedeas  Bonds — What  was  said  in  dis- 
cussing the  rights  and  liabilities  of  parties  and  sureties  to  appeal 
bonds  is  applicable  to  supersedeas  bonds.1  It  is,  indeed,  true 
that  in  almost  every  decision  of  our  court  upon  the  subject  of 
appeal  bonds,  the  instruments  considered  were,  in  effect,  su- 
persedeas bonds,  that  is,  they  were  bonds  executed  to  obtain  a 
stay  of  proceedings  upon  the  judgment  appealed  from.  In 
common  acceptation  the  term  "  appeal  bond"  means  the  same 
thing  as  a  supersedeas  bond,2  and  it  is  otten  true  that  a  bond  is 
both  an  appeal  bond  and  a  supersedeas  bond.  As  the  subject 
of  the  rights  and  liabilities  of  parties  and  sureties  has  been  so 
fully  considered  little  remains  to  do  here,  but  there  are,  never- 
theless, some  special  matters  that  merit  attention,  and  those 
matters  may  be  here  appropriately  considered.  It  is  evident, 
it  may  be  said  at  the  outset,  that  a  surety  is  not,  as  a  general 
rule,  liable  for  anything  more  than  costs  in  a  case  where  the 
appeal  is  prosecuted  from  a  self-executing  judgment.  It  is  true 
that  there  may  be  instances  where  the  appeal  from  a  self-exe- 
cuting judgment  causes  some  special  injury  to  the  appellee  for 
which  he  would  be  entitled  to  recover,  but  such  cases  form  ex- 
ceptions to  the  general  rule.3  Where  part  of  the  judgment  ap- 
pealed from  is  self-executing  and  part  is  not,  there  can  be  no 
difficulty  in  holding  that  if  the  stay  operates  upon  the  part 
which  is  not  self-executing  and  thereby  causes  loss  to  the  ob- 
ligee, he  may  maintain  an  action  on  the  bond.  Where  the 
stay  operates  upon  the  entire  judgment  there  can,  of  course,  be 
no  doubt  that  if  injury  results  to  the  obligee  from  the  delay  he 
is  entitled  to  a  recovery.  If,  however,  the  supersedeas  bond 
does  not  stay  proceedings  to  the  injury  of  the  appellee  he  is 

1  /l>/te,Chap.  XVII, "Appeal  Bonds."  Keen  t/.Whittingen,  40  Md.  489;   Woe! 

2  Ante,  §  355,  note.  v.  Fulton,  2    Harr.  ..V  G.   71;   Blonheiin 

3  United    States   v.  Addison,  6  Wall.  t'.  Moore,  11  Md.  365;   Chamberlain  v. 
291;   Lawler    v.    Alton,  S   Irish  L.  160;  Applegate,  2  Hun.  510. 

Graham    v.    Swigert,    12   15.   Mon.  522; 


STAY   OF  PROCEEDINGS— SUPERSEDEAS.  339 

not  entitled  to  recover  merely  because  he  elected  not  to  enforce 
his  rights  under  the  judgment  pending  the  appeal.1  We  have 
said  that  compensation  is  recoverable  for  actual  loss  or  injury 
caused  by  the  stay  of  proceedings  from  the  sureties  on  the  bond, 
and  this  is  the  doctrine  of  the  adjudged  cases,  but  in  applying 
the  doctrine  some  diversity  of  opinion  has  been  exhibited.  In 
a  case  of  our  own  it  was  held  that  where  one  in  possession  of 
personal  property  unsuccessfully  appeals  and  the  property  de- 
preciates pending  the  appeal  the  loss  resulting  from  such  de- 
preciation is  an  element  of  damages.2  An  unsuccessful  appeal 
in  a  case  where  the  appellant  retains  possession  of  the  land  in 
controversy  pending  the  appeal  entitles  the  obligees  in  the 
supersedeas  bond  to  recover  mesne  rents  and  profits.3 

§  397.  No  liability  where  there  is  no  Injnry  and  no  promise  to 
pay  the  Judgment — The  general  rule  is  that  where  the  stay  of 
proceedings  does  not  operate  to  the  injury  of  the  appellee  and 
there  is  no  promise  to  pay  a  money  judgment  no  actual  dam- 
ages beyond  costs,  are  recoverable.  This  proposition  seems 
so  plain  as  to  hardly  merit  statement  but  its  statement  may,  at 
least,  be  excused  because  it  serves  as  a  preface  to  a  considera- 
tion of  some  incidental  matters  that  are  not  unimportant.  One 
of  these  matters  is  that  the  rule  respecting  the  description  or 
identification  of  the  judgment  which  the  obligors  undertake  to 
pay  in  the  event  that  the  appeal  is  not  successful  is  very  liberal, 
inasmuch  as  it  asserts  that  no  great  particularity  of  description 

1  Carver  v.  Carver,  115  Ind.  539.  We  former  statutes  a  different  doctrine  was 
are  not  here,  it  may  be  well  enough  to  held.  Malone  v.  McClain,  3  Ind.  ^32, 
say,  referring  to  the  effect  of  a  promise  Epstein  v.  Greer,  S5  Ind.  372,  is  not 
to  pay  a  designated  judgment.  As  to  authority  under  the  statute  now  in 
the  effect  of  such  a  promise,  see  Crane  force.  R.  S.  1SS1,  §  63S.  See  Opp  v.  Ten 
v.  Andrews,  10  Col.  265,  15  Pac.  Rep.  Eyck,  supra.  In  Sherry  v.  State  Bank 
331;  Miner  v.  Rodders,  65  Mich.  225,  of  Indiana,  6  Ind.  397,  it  was  held  that 
31  N.W.  Rep.  845;  Fitzgerald  v.  Well-  obligors  were  liable  for  mesne  profits 
ington,  37  Kan.  460,  15  Pac.  R.  582.  and  they  could  not  set  off  the  value  01" 

2  Hinkle  v.  Holmes,  85  Ind.  405.  improvements   made    by    the   principal 

3  Opp  v.  Ten  Eyck,  99  Ind.  345;  Hays  obligor  pending  the  appeal.  See,  gen- 
v.  Wilstach,  101  Ind.  100;  Craig  v.  erally,  Estey,  etc.,  Co.  v.  Runnels 
Encev,  78  Ind.  141;   Cahall  v.  Citizens.  67  Mich.  310,  34  N.  W.  Rep.  5S1. 

etc.,  Association,  74  Ala.  539.     Under 


341  APPELLATE  PROCEDURE. 

is  required.1  Another  of  the  incidental  matters  referred  to  is  this  . 
where  a  recovery  is  sought  beyond  costs  and  nominal  damages 
in  n  case  where  there  is  no  undertaking,  implied  or  express, 
to  pay  the  judgment,  actual  injury  must  be  shown,  and  in  some 
instances  special  damages  must  be  averred  and  proved.  If  an 
appellant  does  no  affirmative  act  causing  actual  injur}-  to  the 
appellee  he  may  be  liable  for  nominal  damages  and  for  costs, 
and  where  there  is  a  promise  to  pay  the  judgment,  for  the  prin- 
cipal and  interest  due  upon  it.  This  rule  is  not  affected  by  the 
lact  that  the  appellant  ma}-  have  a  right  to  pursue  a  course 
that,  if  actually  pursued,  would  secure  him  benefit  and  cause 
loss  to  the  appellee.  Thus,  a  stay  of  proceedings  which  would 
enable  a  party  to  obtain  possession  of  land  or  to  retain  posses- 
sion already  held  by  him  would  not  authorize  a  recovery  for 
the  use  of  the  land  unless  in  the  one  case  possession  was  taken 
or  in  the  other  possession  wras  retained.1'  The  general  doctrine 
is  asserted  and  enforced  by  the  cases  wherein  it  was  held  that 
if  a  party  does  not  in  fact  obtain  a  supersedeas  there  is  no  lia- 
bility on  the  bond,  although  he  was  entitled  to  a  supersedeas 
had  he  elected  to  avail  himself  of  his  right.3  It  seems  to  us 
that  the  cases  last  referred  to  carry  the  doctrine  to  its  utmost 
verge,  and  that  it  may  well  be  doubted  whether  they  do  not 
carry  it  beyond  the  true  line.  If  the  appellee  should  enforce 
his  judgment  notwithstanding  the  appellant's  right  to  a  stay, 
then,  doubtless,  there  would  be  no  liability  on  the  bond  beyond 
nominal  damages  and  costs,  but  if  the  appellee  should  treat  the 
bond  as  having  effected  the  purpose  for  which  it  was  executed 
and  await  the  result  of  the  appeal  it  would  seem  clear  that  if 
the  bond  contained  an  undertaking  to  pay  the  judgment  ap- 
pealed from,  he  might  enforce   it   against   the  obligors  in  the 


1  Williams  v.  Sims  (Texas.),  16  S.  W.  2  Carver  v.  Carver,  115  I  rid.  539.     As 

Rip.   7S6;  Jones  v.  M  alloy  (Texas),  15  to  the  right  and  measure  of  a  recovery 

S.  W.  Rep.  1 98;    Janus  v.   Roberts,  78  under  the   provisions  of  section  63S  of 

Tex.  ^70;   Witten  v.  Caspary  (Texas),  the  code,  see  ante,  §  3S3. 

[5  S.  W.  Rep.  47;  Phelps  v.  Daniel,  S6  s  Reed  v.  Lander,  5  Bush^S;  White- 

Ga.  363,   12   S.    E.   Rep.  5S4;    Dyer  -'.  head  v.  Boorom,  7  Bush.  399;   Wade  v. 

Brady,  88   Cal.  590,  26  Pac.  Rep.  511.  First  National  Bank,  11  Bush.  697. 
Si     Richardson  v.  Richardson,  82  Mich. 
305,  Y'  N.  W.  Rep.  670. 


STAY   OF  PROCEEDINGS— SUPERSEDEAS.  ;;  |  1 

event  of  a  breach  of  the  condition  to  prosecute  the  appeal  to 
effect. 

§  398.  Trial  Court  can  not  control  a  Supersedeas — A  supersedeas 
is  an  order  of  an  appellate  tribunal  made  by  it  in  the  exercise 
of  its  appellate  jurisdiction,  and  as  such  it  is  above  the  control 
of  an  inferior  tribunal.1  It  is  a  settled  principle  of  appellate 
procedure  that  when  a  case  is  brought  within  the  jurisdiction 
of  an  appellate  tribunal  it  is  taken  entirely  out  of  the  control 
of  the  inferior  court.2  The  rule  just  stated  is  not  violated  by 
the  cases  which  hold  that  the  trial  court  may,  upon  due  appli- 
cation, amend  its  record  so  as  to  make  it  speak  the  truth,  for 
those  cases  rest  upon  the  ground  that  the  acts  have  been  per- 
formed but  are  not  properly  evidenced  by  the  record  entries. 
Where  a  judgment  has  been  affirmed  and  the  judgment  of  the 
appellate  tribunal  certified  to  the  clerk  below  it  is  not,  as  a 
general  rule,  in  the  power  of  the  lower  court  to  stay  the  pro- 
ceedings contrary  to  the  mandate  of  the  higher  court.3  This 
general  rule  is  not  without  exceptions.  If  facts  presenting  a 
cause  for  staying  proceedings  on  the  judgment  have  come  into 
existence  since  the  rendition  of  the  judgment  and  were  not 
discovered  until  after  its  affirmance,  we  suppose  the  trial  court 
might  interfere  for  the  protection  of  the  unsuccessful  party, 
provided,  of  course,  he  showed  merit  and  diligence  and  pro- 
ceeded in  the  appropriate  mode.  The  judgment  of  affirmance 
may  well  be  regarded  as  conclusive  as  to  all  the  facts  and  all 
the  questions  involved  in  the  controversy  on  appeal,  but  it  can 
hardly  be  so  regarded  as  to  facts  not  in  existence  when  the 
judgment  on  appeal  was  pronounced.4  Like  all  general  rules, 
the  rule  stated  must  be  subject  to  exceptions,  and  one  exists  in 
a  case  where  a  party  shows  right  to  be  relieved  from  fraud. 


1  Draper   v.  Davis,   102    U.   S.   370;  Kolsem     (Ind.    Sup.    Ct.),      Dec.     17, 
Hovey   v.   McDonald,   109  U.   S.   150;  1S91. 

Helden    v.    Helden,    9   Wis.  557.     See  3  Mayor  of  Marysville  v.  Buchanan, 

Jerome  v.  McCarter,  21  Wall.  17;  Rail-  3Cal.  212;   Dibrell  v.  Eastland,  3  Yerg. 

road  Co.  v.  Schute,  100  U.  S.  644.  507. 

2  See  post,  Chapter  XXVII,  "  Effect  *  Post,  Chapter  XXIX,   '-Judgment 
of   an     appeal."      See,    also,    State  v.  on  Appeal." 


APPELLATE   PROCEDURE 

§399  Settiug  aside  a  Supersedeas  —  Practice— Although  the 
-  in  which  a  supersedeas  will  be  set  aside  are  very  rare, 
still,  there  are  cases  in  which  it  may  be  done.  A  supersedeas 
will  not  be  set  aside  upon  the  ground  that  there  is  no  merit  in 
the  appeal,  and  the  uniform  practice  of  the  court  has  been  to 
decline  to  entertain  a  motion  founded  upon  any  such  ground. 
The  reason  for  this  rule  is  obvious.  Nor  will  the  court  enter- 
tain a  motion  to  set  aside  a  supersedeas  upon  the  ground  that 
the  supersedeas  brief  filed  is  not  sufficient.  Such  questions  are 
foreclosed  by  the  decision  involved  in  the  order  granting  the 
supersedeas.  But  where  the  supersedeas  is  obtained  by  fraud 
it  may  be  set  aside.1  So  it  may  be  where  the  bond  filed  in  the 
appellate  tribunal  is  insufficient.  Where  sureties  on  the  bond 
filed  below  have  since  its  approval  become  insufficient,  the  ap- 
pellate tribunal  may,  in  the  proper  case,  set  aside  the  stay  of 
proceedings.2  The  practice  is  to  file  a  written  motion  to  set 
aside  the  supersedeas  specifying  the  grounds  of  the  applica- 
tion, and  to  give  written  notice  of  the  motion  to  the  adverse 
party.  If  questions  of  fact  are  presented  by  the  motion  affida- 
vits should  be  filed  with  it.  Upon  questions  of  law  a  brief  is 
required.  No  oral  arguments  are  heard  upon  such  motions 
except  in  special  cases  and  upon  leave  asked  in  writing  and 
obtained.  The  motion  with  affidavits  and  briefs  should  be  filed 
with  the  clerk  and  he  should  be  requested  to  place  them  before 
the  court.3  A  party  opposing  the  motion  has  a  right  to  file 
counter-affidavits  and  briefs,  and  the  motion  is  disposed  of  upon 
the  papers  filed. 

§  400.  Motions  to  Dismiss  an  Appeal,  and  Motions  to  vacate  a 
Supersedeas — There  is  an  important  difference  between  dismiss- 

1  Draper  v.  Davis,  102  U.  S.  370;  extraordinary  cases,  is  the  insufficiency 
Railroad  Co.  v.  Schute,  100  U.  S.  644;  of  the  hond.  It  may  be  shown  that  the 
Jerome  v.  McCarter,  21  Wall.  17.  bond  is  radically  defective,  or  that  the 

2  See  ante,  §  366;  Midland  R.  Co.  v.  sureties  are  insolvent,  and,  for  that  pur- 
Wilcox,  in  Ind.  561.  pose,  evidence  in  the  form  of  affidavits 

3  Rules  XT,  XII,  XIII,  XIV.  A1-.  or  depositions  is  competent.  It  may 
though  it  is  implied  in  what  is  said  in  be  added,  that  the  supersedeas  will  not 
the  text,  it  may  not  be  inappropriate  to  be  vacated  unless  the  assailant  makes  a 
expressly  say  that  the  only  ground  strong  and  clear  case.  After  the  order 
upon  which  a  motion  to  vacate-  a  super-  is  made  the  burden  is  upon  the  party 
sedeas  can  be  supported,  except  in  very  who  seeks  to  have  it  vacated. 


STAY  OF  PROCEEDINGS— SUPERSEDEAS.  343 

ing  an  appeal  and  setting  aside  a  stay  of  proceedings  or  vacat- 
ing an  order  of  supersedeas.  The  difference  is  obvious  although 
it  is  often  lost  sight  of  in  practice.  As  a  bond  is  not,  ordinar- 
ily, essential  to  an  appeal  the  appeal  may  often  be  effective, 
although  the  bond  is  not  sufficient  to  support  a  stay  of  proceed- 
ings or  an  order  of  supersedeas.  Where  a  bond  is  essential  to 
an  appeal,  as,  for  instance  in  the  case  of  an  appeal  in  term,  or, 
in  the  case  of  an  appeal  from  an  interlocutor)'  order,  then  the 
failure  to  file  one  may  support  a  motion  to  dismiss  the  appeal  ; 
where,  however,  the  bond  is  only  required  to  secure  a  stay  of 
proceedings  the  failure  to  file  a  bond  may  support  a  motion  to 
set  aside  the  order  staying  the  proceedings,  but  it  will  not  be 
sufficient  cause  for  dismissing  the  appeal.1  In  cases  where  the 
bond  is  not  sufficient  to  support  an  order  of  supersedeas  the 
proper  motion  is  to  vacate  or  set  aside  the  order,  but  where  it 
is  essential  to  the  effectiveness  of  the  appeal  the  motion  to  dis- 
miss is  the  appropriate  one.  It  may  be  true,  and,  indeed,  it  is 
generally  true,  that  in  cases  where  a  bond  is  filed  because  re- 
quired to  perfect  the  appeal  it  serves  a  double  purpose,  namely, 
that  of  a  necessary  step  in  the  appeal  itself,  and,  also,  that  of 
securing  ancillary  relief  by  staying  or  suspending  proceedings 
on  the  judgment  from  which  the  appeal  is  prosecuted,  and,  when 
this  is  true,  one  motion, — that  to  dismiss  the  appeal, — is  all  that 
is  required. 

1  Winter  v.  Hughes,  3  Utah,  43S,  24  Pac.  Rep.  907. 


CHAPTER  XIX. 
i 

PLEADINGS  OF  THE  APPELLEE. 
§  401     Demurrer  to  the  assignment  of     §  416.    Assignment    of  cross  -  errors 


402.  Ill-assigned  errors  disregarded. 

403.  Classification    of  pleas   or    an- 

swers. 

404.  Joinder  in  error. 

405.  The  common  joinder  admits  the 

record. 

406.  Waiver  by  common  joinder. 

407.  Special  pleas  or  answers. 

408.  What  must  be  specially  pleaded. 

409.  Election  of  remedies. 

410.  Presenting  matter  in  bar  by  mo- 

tion. 

411.  Verification  of  the  motion. 

412.  Notice  of  the  plea  or  motion. 

413.  Demurrer  to  the  special  plea. 

414.  Reply  to  the  special  plea. 

415.  Cross-errors. 


When  necessary. 

417.  Nature    of    the    assignment   of 

cross-errors. 

418.  Object    of    the    assignment    of 

cross-errors. 

419.  Effect    of    the     assignment     of 

cross-errors. 

420.  Groundwork  of  the  assignment 

of  cross-errors. 

421.  Transcript. 

422.  Notice   of    the    assignment    of 

cross-errors  not  required  when 
filed  within  the  time  limited 

423.  Time  within  which  cross-errors 

may  be  assigned. 

424.  Answer    to    the    assignment  of 

cross-errors  not  required. 


§  401.  Demurrer  to  the  Assignment  of  Errors — At  common  law 
an  assignment  of  errors  was  regarded  as  a  declaration,  and  our 
decisions  declare  that  it  is  the  appellant's  complaint  on  appeal. 
It  was  the  practice  at  common  law  to  demur  to  the  assignment 
of  errors  where  it  was  insufficient,1  and,  some  of  the  writers  on 
procedure  affirm  that  a  demurrer  is  proper  under  our  code  system. 
We  are,  however,  very  much  inclined  to  doubt  whether  our 
code  intended  that  demurrers  should  be  filed  to  the  assignment 
of  errors.  There  is,  at  all  events,  no  longer  any  practical  ben- 
efit to  be  secured  by  demurring.  Defects  in  the  assignments 
of  errors  when  called  to  the  attention  of  the  court  in  the  brief  or 

1  Freeborn  v.  Denman,  2   Halst.  190;  law,  as  under  our  system,  each  specifi- 

Fitch  v.  Lothrop,  2  Root,  524;    Clarke  cation  was  required  to  be  complete  in 

v.   Bell,   2   Litt.  (Ky.),  162;   Moody  v.  itself.     Landsdale  v    Findley,   Hardin, 

Vrceland,   7   Wend.    55.     At    common  151;   Kelley  v.  Bennett,  132  Pa.  St.  218. 

(344) 


PLEADINGS  OF  THE  APPELLEE.  345 

argument  will  receive  consideration,  and  parties  by  this  course 
can  secure  all  the  substantial  benefit  that  a  demurrer  could  pro- 
cure.1 A  reference  to  some  of  the  decided  cases  will  make 
good  the  statement,  that  it  is  sufficient  to  direct  attention  to  the 
defective  assignment  and  that  when  so  challenged,  it  will  be 
held  to  be  unavailing.  A  joint  assignment  of  errors  not  good 
as  to  all  will  be  held  not  good  as  to  any  who  join  in  it.2  Omis- 
sion of  names  will  be  held  fatal.3  Where  instructions  are  not 
sufficiently  indicated  specifications  founded  on  rulings  upon 
them  will  be  adjudged  to  be  ill.4  Assigning  as  error  what 
should  be  specified  in  the  motion  for  a  new  trial  will  be  declared 
to  be  nugatory.5  So,  as  held  in  cases  almost  past  numbering, 
a  specification  that  is  too  general  will  accomplish  nothing.6  The 
doctrine  of  our  cases  is  held  by  many  other  courts.7 

§  402.  Ill-assigned  Errors  Disregarded — It  is  the  rule  as  de- 
clared by  the  adjudged  cases  that  ill-assigned  errors  will  not 
be  considered,  for  this  is  the  only  effect  that  can  be  logically 
ascribed  to  those  cases.  As  errors  not  well  assigned  are  dis- 
regarded there  can  be  no  possible  reason  for  demurring.  There 
are,  on  the  other  hand,  substantial  reasons  why  the  practice  of 
demurring  should  be  disapproved.  It  tends  to  multiply  plead- 
ings and  uselessly  cumber  the  record.     It  breeds  useless  tech- 

1  See  "The  Assignment  of  Errors,"  6  Knusly  v.  Hire  (Ind.  App.  Ct.),  28 
Chapter  XVI.  N.E.Rep.  195;   Lawless  v.  Harrington 

2  Hawkins  v.  Heinzman,  126  Ind.  75  Ind.  379;  Clayton  v.  Blough,  93  Ind. 
551;  Wall  v.  Bagby,  126  Ind.  372,  Ar-  85.  The  court  will,  indeed,  of  its  OAvn 
buckle  v.  Swim,  123  Ind.  208.  motion  disregard  insufficient  specifica- 

3  Snyder  v.  Fleming,  124  Ind.  335.  tions. 

4  Ohio,etc, Co.  v.  McCartney,  121  Ind.  7  Arndt  v.  Hosford  (Iowa),  48  N.  W. 
3S5,  limiting  Bartholomew  T'.Langsdale,  Rep.  981,  Blecker  v.  Schoff  (Iowa),  48 
35  Ind.  278,  in  fact  practically  overrul-  N.  W.  Rep.  1079;  American  Legion  v . 
ing  it.  See,  Pratt  v.  Burhans,  47  N.W.  Rowell  (Texas),  15  S.  W.  Rep.  217; 
Rep.  1064;  Taylor  v.  Steam  Naviga-  Farrar  v.  Churchill,  135  U.  S.  609, 
tion  Co.,  105  N.  C.  484.  Kimbrell  v.  Rogers  (Ala.),  7   So.  Rep. 

5  Staser  v.  Hogan,  120  Ind.  207;  Bed-  241,  Johnston  v.  Flint,  75  Texas,  379, 
ford,  etc.,  v.  Rainbolt,  99  Ind.  551;  West  12  S.  W.  Rep.  1120;  Garlington  v. 
v.  Cavins,  74  Ind.  265;  Ogle  v.  Dill,  61  Copeland,  25  So.  Car.  41 ;  Franz,  etc., 
Ind.  43S;  Patterson  v.  Lord,  47  Ind.  Co.  v.  Mielenz,  5  Dak.  136,  37  N.  W. 
203;  Garrigan  v.  Dickey  (Ind. App.  Ct.),  Rep.  728;  Territory  v.  Reberg,  6  Mont. 
27  N.  E.  Rep.  713;  Ringenberger  v.  467;  Filley  v.  Walker,  44  N.  W.  Rep. 
Hartman,  102  Ind.  537,  26  N.  E.  Rep.  91.  737. 


3  ),;  APPELLATE   PROCEDURE. 

localities.  It  creates  collateral  issues.  The  mischief  it  does  is 
not  counterbalanced  by  any  corresponding  good,  for  it  really 
produces  nothing  of  value.  Bald  technical  errors,  or  mere 
errors  of  form,  the  courts  will  not  regard,  so  that,  as  it  is  useless 
to  urge  such  errors  or  defects  against  the  assignment  of  errors, 
there  is  no  function  for  a  demurrer  to  perform. 

§  403.  Classification  of  Pleas  or  Answers— The  subject  of  ap- 
peals is  regulated  to  a  very  great  extent  by  statute,  but  there 
are,  nevertheless,  many  of  the  common  law  principles  which 
are  still  of  controlling  influence.  Many  questions  of  prac- 
tice are  solved  b}'  resorting  to  the  rules  which  prevailed  in  the 
common  law  procedure  ordinarily  denominated  a  writ  of 
error.  While  it  is  true  that  our  statute  has  abolished  writs  of 
error,  it  is  still  true  that  many  of  the  principles  established  by 
the  courts  of  common  law  enter  into  and  form  part  of  our  sys- 
tem of  procedure.  Old  rules  of  the  common  law  cling  to  the 
new  modes  of  procedure  with  something  of  the  same  tenacity 
that  the  "Old  man  of  the  Sea"  clung  to  "  Sinbad  the  sailor." 
Reference  is  constantly  made  to  the  common  law  decisions,  and 
this  is  done  upon  the  long  accepted  doctrine  that  the  common 
law  aids  statutes.  Following  this  doctrine  we  shall  adopt  the 
old  classification  of  pleas  that  may  be  pleaded  on  appeal  to  the 
assignment  of  errors.  "  Pleas  in  error  are  common  or  special."1 
This  shall  be  our  classification,  though  it  may  not  be  as  accurate 
or  definite  as  it  is  possible  to  frame.  There  is  but  one  com- 
mon plea,  but  there  are  numerous  special  pleas. 

s1  404.  Joinder  in  Error — The  common  plea,  or  as  we  call  it, 
and  as  it  is  generally  called  elsewhere,  the  common  joinder  is  ; 
"  There  is  no  error  in  the  record  or  proceedings."2  This  plea, 
or  answer,  is  in  the  nature  of  a  demurrer.3  It  admits  all  that 
is  properly  part  of  the  record,  and  presents  an  issue  of  law. 
Under  the  old  rules  it  did  not  admit  errors  that  "  were  ill-as- 
signed."4    Some  of  our  decisions  seem  to   indicate   that  the 

1  2  Tidd's  Pr.  (4  Am.  ed.)  S63.  8  Booth  v.  Commonwealth,  7   Metcf. 

-   The  formula  in  the  old  books,  and,     (Mass.)  285,  2S7. 
indeed,   in   many   modern  ones  is,  "  in         4  2  Tidd's  Pr.  (4  Am.  ed.)  1173;  Bo- 
nullo  est  erratum."  dentha  v.  Goodrich.   3  Gray,  508,  512; 

Riley  v.  Waugh,  8  Cush.  220. 


PLEADINGS  OF  THE  APPELLEE.  347 

rule  is  that  errors  not  accurately  assigned  are  admitted,  but, 
certainly,  what  can  not  be  assigned  as  error  is  not  confessed  by 
the  common  joinder.  We  suppose  all  that  can  be  said  is  that 
under  our  system  the  common  joinder  waives  matters  of  form 
but  not  matters  of  substance.  That  it  does  not  confess  speci- 
fications not  well  made  is  settled  beyond  controvery.  This  is 
the  doctrine  of  the  long  line  of  cases  which  hold  that  specifica- 
tions of  error  must  be  definite,  as  well  as  of  the  great  number 
of  cases  which  hold  that  reasons  for  a  new  trial  "can  not  be 
made  specifications'in  the  assignment  of  errors.  There  can  be 
little  doubt  that  under  our  system  of  procedure  matters  of  sub- 
stance which  render  bad  the  specifications  in  the  assignment  of 
errors  are  not  made  unavailing  by  a  common  joinder  in  error. 
Matters  of  form  can  not  be  made  available  upon  such  a  plea  or 
answer,  but  matters  of  substance  may  be.  It  has  never  been 
the  practice  to  specifically  object  to  such  specifications  as  we 
have  named,  but  it  has  always  been  held  that  the  appellee  may 
make  objections  after  joining  in  error,  that  is,  he  may  show 
that  the  specification  is  not  sufficient  to  bring  in  review  the  rul- 
ings of  the  trial  court. 

§  405.  The  Common  Joinder  admits  the  Record — The  general 
rule  is  often  stated  thus,  "  the  common  answer  or  plea  admits 
the  record."  l  This  statement  requires  qualification.  The  an- 
swer does  admit  that  the  record  is  perfect  unless  the  record 
itself  shows  that  it  is  imperfect.  Under  our  decisions  the  plea 
does  not  admit  that  all  recitals  or  instruments  contained  in  the 
record  are  properly  there  if  upon  the  face  of  the  record  itself 
it  appears  that  they  are  not  legitimately  a  part  of  it.  Thus,  it 
does  not  confess  that  mere  statements  of  a  ministerial  officer 
are  part  of  the  record,  nor  that  a  bill  of  exceptions  not  signed 
or  not  filed  in  time  is  in  the  record,  although  copied  in  the  tran- 
script. It  is  entirely  safe  to  affirm  that  where  the  record  upon 
its  face  shows  that  matters  are  copied  into  it  which  do  not  le- 

1  Tidd  says:     "By  pleading  in   nullo  lows  these  general  statements,  however, 

est  erratum,  the  defendant  in  error  ad-  with    others   which    modify   or  qualify 

mits  the  record  to  be  perfect;  the  effect  their   effect    and    scope.     2    Tidd's    Pr. 

of  his  plea  being  that  the  record  in  its  1 174. 
present  state  is  without  error."   He  fol- 


348  APPELLATE  PROCEDURE. 

gitimately  belong  there  the  plea  does  not  preclude  the  party 
pleading  it  from  denying  that  they  are  part  of  the  record.1  In 
such  a  case,  as  we  have  elsewhere  fully  shown,  the  appellee 
may  point  out  the  parts  of  the  transcript  embodying  improper 
orders,  instruments,  or  recitals,  and  if  the  transcript,  upon  in- 
spection, shows  that  the  appellee  is  right,  the  ill  parts  of  the 
transcript  will  be  disregarded  by  the  court  in  deciding  the  case.2 
But  where  the  record  does  not  on  its  face  disclose  the  infirmity 
then  there  must  be  an  amendment,  otherwise  the  plea  will  con- 
clude the  party  who  pleads  it.  Omissions  in  the  transcript 
must,  as  a  general  rule,  be  supplied,  for  it  is  seldom,  indeed, 
that  the  face  of  the  transcript  discloses  the  fact  that  material 
matters  are  omitted.  A  party  who  stands  solely  upon  the  plea 
can  not  contradict  the  record  on  appeal.  But  in  saying  this  we 
do  not  mean  to  convey  the  impression  that  a  party  may  not,  af- 
ter joinder,  obtain  a  correction  of  the  record  ;  we  mean  only 
this,  that  if  nothing  more  is  done  than  to  file  the  plea  he  can  not 
contradict  the  record.  As  we  have  shown  in  another  place,  a 
party  may  have  the  record  corrected  even  after  the  case  has 
been  submitted. 

§  406.  Waiver  by  Common  Joinder — All  objections  to  process 
are  waived  by  a  joinder  in  error.3  It  operates  as  a  waiver  of 
many  other  rights,  as,  for  instance,  a  motion  to  dismiss  an  ap- 
peal.' It  will  waive  an  objection  that  there  is  a  defect  of  par- 
ties, and  all  objections  of  like  character.5  But  it  is  not  neces- 
sary to  collect  particular  cases,  for  it  may  be  said  that  a  joinder 
in  error  waives  all  strictly  preliminary  motions,  except  such  as 
go  to  the  jurisdiction  of  the  subject.     It  is  necessary,  therefore, 

1  Even  in  jurisdictions  where  the  ef-  193;  Roanoke  7'.  Karn, So  Va.  589;  Shil- 
fect  given  the  common  joinder  is  more  leto  v.  Thatcher,  43  Ohio  St.  63. 
strict   than  that  given  it  under  our  sys-         3  Motions  to  strike  out  are  unneces- 
tem,   matters    not   properly  in   the  rec-  sarv  where  the  record  shows  that  the 
oid.  although  copied  in  the  transcript,  instrument,  order  or  recital  is  not  prop- 
will  not  he  regarded  as  admitted  to  be  erly    part   of  the  record.     Creamer   7'. 
part    of  the    record.      Baker    v.    Swift  Sirp,  91  Ind.  366. 
(Ala.),  6  So.  Rep.  153;   Winters  7'.  Null         3  Beck  v.  State,  72  Ind.  251,  255. 
(  W.  Va.),  7  S.  E.  Rep.  443;    Chicago,        4  State  v.  Walters,  64  Ind.  226,  228. 

-.   Yando,    127   111.   214,20    N.  E.         5  Field  v.  Burton,  71  Ind.  380. 
Rep.  70;     Noble   v.  Bourke,  44   Mich. 


PLEADINGS  OF  THE  APPELLEE.  349 

for  a  party  who  desires  to  present  a  preliminary  question  to  do 
so  before  filing  a  joinder  in  error.  If  the  joinder  was  obtained 
by  fraud  or  was  made  through  mistake,  the  court  may,  upon  a 
proper  application  and  for  sufficient  cause,  permit  it  to  be  with- 
drawn, or  relieve  the  party  from  its  effect. 

§  407.  Special  Pleas  or  Answers — A  special  answer  to  the  as- 
signment of  errors  is  affirmative,  and  is  in  the  nature  of  an  an- 
swer in  the  trial  court,  pleading  matter  in  confession  and  avoid- 
ance. It  does  not  controvert  the  assignment  of  errors,  but  avers 
facts  showing  that  it  has  ceased  to  be  effective.  A  special  plea 
is  always  required  where  matters  have  occurred  since  the  ap- 
peal was  taken  which  render  the  attack  upon  the  judgment  of 
the  trial  court  unavailing.  In  general  it  pleads  matters  which 
occurred  after  the  judgment  below  was  entered. 

§  408.  What  must  be  Specially  Pleaded — A  release  of  errors 
must  be  specially  pleaded,  for  the  release  is  not  available  under 
the  common  joinder.1  The  joinder  admits  the  representative 
character  of  the  party  assigning  error,  and  facts  showing  the 
contrary  must  be  set  forth  in  a  special  plea.2  A  special  plea  is, 
it  has  been  held,  a  proper  mode  of  presenting  the  objection  that 
the  appeal  was  not  taken  within  the  time  limited  by  law,3  but  a 
verified  motion  is  simpler  and  equally  as  efficacious.4  The  mo- 
tion is  now  usually  employed  in  such  cases.5     Where  the  rec- 

1  Adams  f.  Beem,4  Blackf.  128;  Veach  3  Jacobs  v.  Graham,  1  Blackf.  392. 
v.  Pearce,  6  Ind.  48;  Vick  v.  Maulding,  The  plea  does  not  confess  errors  as  to 
1  How.  (Miss.),  217;  Trustees  v.  Hih-  appellants  not  barred.  Hawkins  v. 
ler,  85  111.  409.  It  is  held  by  the  Su-  Hawkins,  2S  Ind.  66;  McEndree  v. 
preme  Court  of   Illinois  that  where  a  McEndree,  12  Ind.  97. 

party  unsuccessfully  pleads  a  release  of  4  Buntin    v.    Hooper,    59    Ind.    589; 

errors  the  judgment  will    be   reversed  Day  v.  School  City  of  Huntington,  78 

and  leave  will  not  be  granted  to  join  in  Ind.  280. 

error.     Mahoney   v.  Keane,   28   N.   E.  5  Louisville,   etc.,   Co.  V.  Boland,  70 

Rep.  915;   Austin  f.  Bainter,  40  111.  S2;  Ind.  595;   Louisville,  etc.,  Co.  v.  Jack- 

Clapp  v.  Reid,  40  111.  121;  Ruckman  v.  son,  64  Ind.  39S;  Miller  v.  Carmichael, 

Allwood,  44  111.  184.  98    Ind.    236.     A    failure    to   appeal  in 

2  Rundles  v.  Jones,  3  Ind.  35.  See  time  is  regarded  as  an  infirmity  affect- 
Voiles  v.  Voiles,  51  Ind.  385.  There  ing  jurisdiction.  Miller  v.  Carmichael, 
may  possibly  be  cases  where  this  rule  supra.  A  jurisdictional  question  may, 
will  not  fully  apply,  but  they  are  rare  as  we  have  seen,  and  as  decided  in  the 
ones.  last  named  and  other  cases,  be  made  at 


350  APPELLATE  PROCEDURE. 

ord  discloses  the  fact  that  the  appeal  was  not  taken  in  time  it 
is  the  better  practice  to  use  the  motion  rather  than  the  special 
plea.  Under  the  old  system  the  statute  of  limitation  was  avail- 
able only  upon  a  special  plea,  but  under  the  liberal  rule  our 
decisions  declare  it  may  be  made  available  on  a  proper  motion.1 
It  is,  indeed,  evident  from  the  trend  of  our  decisions  that  the 
motion  to  dismiss  has  in  a  great  measure  supplanted  the 
special  plea,  but  it  has  not  entirely  excluded  that  remedy. 
Where  the  judgment  creditor  and  appellant  buys  land  upon  an 
execution  issued  on  the  judgment  and  receipts  the  judgment,  it 
bars  the  appeal,  and  the  facts  should  be  specially  pleaded  to 
the  assignment  of  errors.  Acceptance  of  payment  by  the  ap- 
pellant bars  the  appeal,  and  such  payment  is  well  pleaded  by 
special  plea  or  answer.3  But  a  verified  motion  will  present  the 
question.4  The  position  of  a  defendant  who  pays  a  judgment5 
or  enters  replevin  bail 6  is  essentially  different  from  that  of  a 
plaintiff  who  voluntarily  accepts  payment,  and  the  appeal  of 
such  a  defendant  is  not  barred.  Facts  constituting  an  estoppel 
should  be  specially  pleaded.  Thus,  if  the  appellant  accepts  a 
substantial  benefit  from  the  judgment,  the  facts  are  properly  set 
forth  specially,  for  they  would  not  be  available  under  the  com- 
mon joinder.7  Possibly  they  would  be  available  under  a  motion 
to  dismiss,  but  it  is  certainly  more  appropriate  to  present  mat- 
ter of  estoppel  by  plea.  We  suppose  that  notwithstanding  the 
fact  that  the  present  practice  permits  matters  in  bar  to  be  alleged 
by  motion  as  well  as  by  plea,  there  are  some  matters  that  may 
be  more  appropriately  presented  by  plea,  as,  for  instance,  a  re- 
lease. 

an v  stage  of  the  proceedings.     Louis-  v.  Bain,  i    Wash.   Tv.  482,    Alexander 

ville,  etc.,  Co.  v.  Horton,  67  Ind.  546;  v.  Alexander,  104  N.  Y.  643. 

Morton  v.  Sawyer,  59  Ind.  587.  4  McCracken  v.  Cabel,  120  Ind.  266. 

1  Broojks  v.  Norris,  11  How.  (U.  S.),  5  Hayes    v.    Nourse,    107    N.  Y.  577; 

204.  Chapman  v.  Sutton,  CS   Wis.  657;    Ed- 

7  Clark  v.  Wright,  67  Ind.  224;    Test  wards  v.  Perkins.  7  Oregon,  149;    Aimes 

v.  Larsh,  76  Ind.  y$2.  v.  Chappel,    28  Ind.  469;   Dickensheets 

3  Newman   :■.   Riser  (Ind.),  26  N.  E.  v.   Kaufman,  29   Ind.    154;   Johnson  V. 

Rep.   1006,   and   cases    cited;   Smith  v.  Unversaw,  30  Ind.  435. 

lan    (Wis.),  46    N.W.   Rep.  664;  6  liver  v.  Norton.  26  Ind.  269. 

ire  v.  Floyd.  4  Oregon,  260;   Lyons  7  Pittsburgh,  etc.,  Ry.  Co.  v.  Swinny, 

91  Ind.  399. 


PLEADINGS  OF  THE  APPELLEE.  351 

§  409.  Election  of  Remedies — It  seems  from  our  decisions  that 
the  appellee  may  allege  matter  in  bar  of  the  appeal  either  by 
motion  or  by  plea.  The  remedies  are,  according  to  the  rule 
deducible  from  the  decisions,  cumulative,  and  the  appellee  may 
generally  elect  which  he  will  pursue.  The  court  declared  in 
one  of  the  earlier  cases  that  it  was  inclined  to  favor  the  practice 
of  presenting  the  question  by  motion.1  The  doctrine  that  mat- 
ter in  bar  may  be  presented  by  motion  is  now  well  established 
and  it  is  illustrated  by  many  ca^es.  The  practice  is  less  cum- 
bersome and  more  direct  than  the  old  procedure  by  plea. 

§  410.  Presenting  Matter  in  Bar  by  Motion — It  needs  neither 
argument  nor  authority  to  prove  that  a  motion  alleging  matter 
in  bar  of  an  appeal  must  be  good  on  its  face.  If  the  motion 
does  not,  upon  inspection,  show  facts  which  bar  the  appeal  it  is 
insufficient.  The  practice  has  been  to  inspect  the  motion  and, 
if  it  is  not  sufficient  on  its  face,  to  deny  it.  Not  many  cases 
can  be  found  in  our  reports  upon  this  subject  for  the  reason  that 
opinions  are  not  usually  written  upon  such  motions,  but  it  has 
long  been  the  practice  to  examine  the  motion  and  if  insufficient 
to  so  adjudge  without  a  formal  opinion.  It  is  necessary,  there- 
fore, to  plead  the  facts  with  directness,  clearness  and  certainty. 

§  411.  Verification  of  the  Motion — It  is  usual  to  verify  all  mo- 
tions pleading  matter  in  bar.  It  can,  however,  hardly  be  said 
that  there  is  any  established  rule  of  practice  requiring  verifica- 
tion, but  there  are  strong  reasons  why  such  a  rule  should  be 
declared  and  enforced.  Verification  is  essential  in  order  that 
it  may  appear  that  the  motion  is  made  in  good  faith  and  that  it 
is,  at  least  believed  by  counsel,  that  there  are  good  grounds  for 
interposing  it. 

1  Buntin  v.  Hooper,  $9  Ind.  5S9.  In  tion  upon  due  notice  to  the  opposite 
the  case  cited  it  was  said:  "With  a  party.  This  is  not  intended,  however, 
view  to  the  simplicity  and  facility  of  to  prevent  the  appellee,  if  he  shall  see 
practice  and  the  early  disposition  of  proper  to  do  so,  from  pleading  lapse  of 
causes  improperly  appealed  after  the  time  in  bar  of  the  appeal."  See  Louis- 
time  limited  therefor,  we  have  conclud-  ville.  etc.,  v.  Boland,  70  Ind.  595;  Day  v. 
ed  to  dispose  of  such  questions  on  mo-  School  City  of  Huntington.  78  Ind.  280. 


352  APPELLATE  PROCEDURE. 

§  412.  Notice  of  the  Plea  or  Motion— Notice  of  the  plea  or  mo- 
tion should  be  given.1  It  is  not  a  motion  or  proceeding  of 
course,  as  the  filing  of  a  brief,  or  the  like,  of  which  parties 
are  bound  to  take  notice  without  special  information.  To  per- 
mit the  hearing  of  such  motions  or  pleas  in  an  appellate  tri- 
bunal to  which  are  brought  cases  from  all  parts  of  the  State,  as 
of  course  and  without  special  notice,  would,  it  is  manifest,  be 
productive  of  hardship  and  injustice. 

§  413.  Demurrer  to  the  Special  Plea — Under  the  old  practice, 
as  we  have  said,  all  matters  in  bar  were  required  to  be  pre- 
sented by  special  plea.  If  the  plea  was  insufficient  a  demurrer 
would  lie.  This  rule  has  been  acted  upon  by  our  court  and  is 
undoubtedly  still  in  force.2  But,  as  the  remedies  by  plea  and 
motion  are  cumulative,  and  as  motions  are  not  usually  tested 
by  demurrer,  we  suppose  that  a  demurrer  is  only  necessary,  or, 
probably,  only  proper,  where  a  plea  is  employed.  It  is  enough, 
under  the  prevailing  practice,  to  point  out,  in  the  brief  on  the 
motion,  the  defects  apparent  in  the  motion  itself.  If  the  motion 
is  insufficient  and  its  insufficiency  is  pointed  out,  the  court  will 
deny  it.  No  formal  attack  upon  a  motion  is  necessary,  but  it 
seems  that  a  formal  attack  must  be  made  where  a  plea  is  filed, 
although  we  can  see  no  good  reason  why  this  should  be  so.  It 
seems  to  us  that  the  spirit  of  our  system  of  procedure  is  that 
all  such  applications,  whether  by  plea  or  by  motion,  should  be 
disposed  of  in  a  summary  way,  giving  little  heed  to  form  and 
going  at  once  to  the  merits  of  the  application. 

§  414.    Reply  to  the  Special  Plea — The  practice  at  common  law 

was  to  file  a  formal  replication  to  a  special  plea  alleging  matter 
in  bar  of  the  appeal.  This  is  still  proper  where  a  formal  plea 
is  filed.  Where,  however,  a  motion  is  filed  presenting  an  issue 
of  fact  it  may  be  met  by  counter- affidavits  without  any  formal 
pleading  tendering  an  issue.  This  practice  has  been  pursued  in 
many  cases  and  it  was  adopted  in  the  case  which  first  speciiic- 
allv  and  decisively  declared  that  matter  in  bar  of  the  appeal 

1  Buntin:\  Hooper,  59  Ind.qSc):  New-  *  Millar  v.  Farrar,  2  Blackf.219;  Pitts- 
man  :•.  Kizer  (Ind.),  26N.E.  Rep.  1006.     burgh,  etc.,  Co.  v.  Swinney,  91  Ind.399.. 


PLEADINGS  OF  THE  APPELLEE.  353 

might  be  alleged  by  motion.  The  plea  may  be  supported  by 
written  evidence,  and  by  written  evidence  it  may  be  met  with- 
out filing  a  formal  reply.1 

§  415.  Cross-Errors — It  has  long  been  the  practice  to  permit 
the  assignment  of  cross-errors  although  there  is  no  statute  ex- 
pressly authorizing  or  providing  for  such  a  pleading.  The 
practice,  however,  is  defensible  upon  principle  and  is  sustained 
by  the  rules  declared  in  analogous  cases.  The  assignment  of 
cross-error  in  many  respects,  but  not  in  all,  resembles  the  cross- 
complaint  or  counter-claim  filed  in  the  trial  court.  As  to  what 
may  be  assigned  as  cross-error  and  as  to  the  form  and  substance 
d{  the  assignment,  it  is  sufficient  to  say  that,  as  a  general  rule, 
the  principles  applicable  to  the  appellant's  assignment  of  errors 
are  equally  applicable  to  the  assignment  of  cross-errors.2  It  is, 
however,  held  that  the  assignment  of  cross-errors  need  not  con- 
tain the  names  of  the  parties  to  the  appeal.3 

§  416.  Assignment  of  Cross-Errors — When  necessary — If  the  ap- 
pellee desires  to  avail  himself  of  an  error  committed  against  him, 
either  for  the  purpose  of  preventing  a  reversal  of  the  judgment 
appealed  from,  or  for  the  purpose  of  obtaining  some  affirmative 
relief,  or  of  vindicating  some  right,  he  must,  as  a  general  rule, 
file  an  assignment  of  cross-errors.4  It  may  be  said  with  safety 
that  the  general  rule  is  that  an  appellee  can  reap  no  advantage 
from  adverse  rulings  unless  he  properly  presents  them  on  appeal 
by  assigning  them  as  the  law  and  the  rules  of  the  court  direct. - 
Where  no  cross-errors  are  assigned  a  bill  of  exceptions  taken 

1  Under  the  rules  of  practice  all  such  Koon,  117  111.  511;  Pollard  v.  King,  63 

issues  as  those  formed  upon  a  plea  or  111.  36;   Dickson  v.  Chicago,  etc.,  Co., 

motion  of  the  character  named  in  the  Si  111.  215;  Johnson  v.  Maples,  49  111. 

text,  are  submitted  to  the  court  for  de-  101,  105.     In  the  case  first  cited  it  was 

cision  upon    written    evidence   in    the  said:     "As  no    cross-errors  have  been 

form  of  affidavits  or   depositions  and  assigned  on  the   record,  counsel  are  in 

written  briefs.  no  position   to  find  any  fault  with  the 

*  Dutton  v.  Dutton,  30  Ind.  452.  ruling  of  the  court.     Had  they  desired 
8  State    v.    First    National    Bank,  89  to    call    in    question  the  ruling  of  the 

Ind.  302;  Nichol  v.  Henry,  89  Ind.  54.      court  they  should  have  excepted  to  the 

*  Rule  IV.  Hayes  v.  O'Brien  (111.),  decision  of  the  court  and  assigned  cross- 
26   N.   E.  Rep.  601;   Hollingsworth   v.     errors." 

23 


354  APPELLATE  PROCEDURE. 

by  the  appellee,  as  it  is  held,  will  not  be  noticed,1  but  we  sup- 
pose that  this  genera]  rule  does  not  always  hold  good,  for  it 
seems  to  us  that  where  a  bill,  although  taken  by  the  appellee, 
contains  recitals  directly  connected  with  the  main  questions  and 
essential  to  a  full  understanding  of  them,  it  should  be  considered 
in  determining  questions  presented  by  the  appellant's  assign 
me::t  of  errors.  It  can  not,  however,  be  considered  in  the  ab- 
sence of  an  assignment  of  cross-errors  for  the  purpose  of  mak- 
ing directly  available  an  error  committed  against  the  appellee, 
but  it  may,  as  we  believe,  be  considered  in  determining  whether 
the  errors  alleged  by  the  appellant  were  in  fact  committed  or 
were  prejudicial.  Ordinarily,  as  we  have  substantially  said, 
errors  committed  against  the  appellee  will  not  be  noticed  for 
anv  purpose  unless  properly  brought  before  the  appellate  tri- 
bunal by  an  assignment  of  cross-errors.2  Where  a  record  is 
amended  by  a  nunc  pro  tunc  order  and  the  proceedings  which 
secured  the  order  are  carried  up,  the  appellee  can  not  avail 
himself  of  any  error  in  the  proceedings  unless  he  has  filed  an 
assignment  of  cross-errors  appropriately  assailing  the  rulings 
made  in  such  proceedings.3  In  one  of  our  cases  it  is  held  that 
if  a  complaint  is  not  challenged  by  an  assignment  of  cross-errors 
its  sufficiency  can  not  be  considered.4  Where  the  complaint 
of  an  appellant  is  appropriately  questioned  by  an  assignment 
of  cross-errors  and  it  is  incurably  bad,  the  judgment  will  be 
affirmed  without  remanding  the  case.5  Where,  however,  the 
complaint  can  be  amended  so  as  to  cure  defects  the  court  ma}' 
reverse  the  judgment  at  the  costs  of  the  appellant,  and  is  not 
bound  to  affirm  the  judgment  because  of  the  defective  com- 
plaint.6 So,  upon  the  same  principle,  no  question  upon  the 
admission  of  incompetent  evidence  can  be  successfully  made 
by  an  appellee  who  has  not  filed  an  assignment  of  cross-errors.7 

1  White  v  Allen,  9  Ind.  561.  *  Anderson,  etc.,   Co.  v.  Thompson, 

1  Nutter  v.  Junction  R.   Co.,   13  Ind.  88  Ind.  405. 

479.     In  the  case  cited  the  ruling  the  5  State  v. Harris,  89  Ind.  363,  367. 

appellee  sought  to  make   available  was  6  McCole    v.    Loehr,    79    Ind.    430; 

in  overruling  a  demurrer  of  the  appel-  Goodman   v.   Niblack,    102   U.  S.  55r>; 

lee  to  the  appellant's  complaint.     See,  Robertson  v.  Cease,  97  U.  S.  646. 

also,  Jenkins   v.   Peckinpaugh,  40  Ind.  7  Evansville,  etc.,  Co.  v.   Mosier.  114 

133.  Ind.  447. 

3  Adler  v.  Sewell,  29  Ind.  598. 


PLEADINGS  OF  THE   APPELLEE.  355 

[n  some  peculiar  cases  a  ruling  adverse  to  the  appellee  can  be 
used  to  destroy  a  specification  of  error  made  by  the  appellant, 
as,  for  instance,  where  the  appellant  secures  the  exclusion  of 
evidence  offered  by  the  appellee  the  latter  may  show  such  a 
ruling  to  prevent  a  reversal  because  evidence  of  the  same  kind 
offered  by  the  appellant  is  excluded,1  but  such  cases  are  marked 
exceptions  to  the  general  rule. 

§  417.  Nature  of  the  Assignment  of  Cross-Errors — An  assignment 
of  cross-errors  is  not  a  plea  in  confession  and  avoidance,  for  it 
does  not  confess  the  errors  assigned  by  the  appellant  in  cases 
where  there  is  a  common  joinder.  It  is  in  the  nature  of  a  coun- 
ter-claim or  cross-complaint  in  the  trial  court.  It  pleads  inde- 
pendent affirmative  matter,  for,  when  properly  framed,  it  pre- 
sents questions  upon  rulings  adverse  to  the  appellee,  and  does 
not  stand  upon  the  same  rulings  as  those  relied  upon  for  the 
reversal  of  the  judgment  assailed  by  the  appellant's  appeal.  It 
is  independent  in  the  sense  that  it  does  not  connect  itself  with 
other  pleas  nor  blend  with  the  appellant's  assignment  of  errors, 
but  it  is,  nevertheless,  connected  with  and  grows  out  of  the 
main  controversy.  The  decisions  are  that  the  appellant  can 
not  dismiss  the  appeal  so  effectively  as  to  carry  with  it  the  as- 
signment of  cross-errors.2  The  practice  has  been  to  decline  to 
dismiss  where  the  appellee  insists  upon  retaining  the  appeal 
upon  the  assignment  made  by  him. 

§  418.  The  Object  of  the  Assignment  of  Cross-Errors — Primarily 
the  object  of  the  rule  permitting  the  assignment  of  cross-errors 
is  to  enable  the  appellate  tribunal  to  adjudicate  upon  all  ma- 
terial questions  in  one  appeal  and  thus  prevent  a  multiplicity  of 
appeals.3    At  common  law  cross-petitions  in  error  were  allowed. 

1  See  "  Invited  Error,"  post.  son  why  cross-petitions  in  error  should 

2  Feder  v.  Field,  117  Ind.  386.  The  not  be  allowed  equally  as  in  original 
appellee  may  elect  to  insist  upon  the  actions.  They  were  allowed  at  common 
retention  of  the  appeal  on  his  assign-  law  and  there  is  nothing  in  the  code 
ment  of  cross-errors.  The  Beeswing,  which  forbids  their  use.  On  the  con- 
10  Law.  Rep.  P.  D.  18.  trary  they  are  calculated  to  subserve  a 

3  In  the  case  of  Shinkle  v.  First  Na-  leading  object  of  the  code,  namely  to 
tional  Bank,  22  Ohio  St.  Rep.  1516,  522,  prevent  multiplicity  of  suits,  and  to  ren- 
it  was  said:     ''There  is    no  good  rea-  der  litigation  simple,  cheap  and  speedy." 


356 


A.PP1  1.1. All:    PROCEDURE. 


Under  our  code,  blending,  as  it  does,  the  principles  of  equity 
and  law  procedure,  but  greatly  favoring  the  former,  there  is 
strong  reason  for  extending  the  doctrine  that  it  is  the  duty  of 
the  courts  to  settle  the  entire  controversy  where  the  questions 
involved  are  presented  to  them.  If  it  be  true,  as  it  surely  is, 
that  a  leading  purpose  of  cross-petitions  in  error,  or  of  assign- 
ments of  cross-error,  is  to  secure  a  complete  adjudication,  then, 
it  is  a  manifestly  logical  conclusion  that  if  the  cross-errors  en- 
title the  appellee  to  affirmative  relief  beyond  the  mere  affirm- 
ance of  his  judgment  full  relief  should  be  awarded  him  when 
he  appropriately  insists  upon  it.  This  rule  has  been  enforced 
in  many  cases  appealed  upon  special  findings,  but  in  those 
cases  it  was  not  directly  affirmed  that  such  relief  was  proper 
although  that  is  the  tacit  assumption.  In  one  case  a  judgment 
was  reversed  upon  cross-errors  assigned  by  the  appellee  and  a 
direction  given  as  to  the  course  to  be  pursued  by  the  trial  court.1 
The  authorities  show  that  the  practice  of  assigning  cross-errors 
is  favored  for  the  reason  that  it  enables  the  court  in  one  case 
and  upon  one  record  to  award  full  affirmative  relief  to  the  party 
entitled  to  it.2  It  seems  to  us  very  clear  upon  principle  that  the 
assignment  of  cross-errors  may,  in  the  proper  case  and  upon 


See,  also,  Bundj  v.  Ophir  Iron  Co., 
35  Ohio  St.  8o.  Much  to  the  same 
effect  is  the  language  of  our  court  in 
Feder  v.  Field,  117  Ind.  386,  where  it 
was  said:  "The  rule  has  much  to  com- 
mend it.  Under  its  operation  one  ap- 
peal brings  to  the  appellate  court  the 
entire  controversy.  By  the  one  appeal 
as  much  can  be  accomplished  as  by  two 
distinct  appeals.  If  distinct  appi 
were  taken,  then  the  only  method  of 
confusion  would  be  to  consoli- 
and  this,  while  it  would 
mplish  no  more  would  greatly  in- 
e  the  record  and  augment  the 
costs.  The  rule  is  in  harmony  with  the 
spirit  of  our  code,  since  it  tends  to  bring 
the  merits  of  a  controversy  before  the 
court  in  a  short  and  simple  method." 
All  equitable  rules  run  in  one  direction 
and  that   is   against   the  dissection  of  a 


case  into  parts.  Ex  farte  Sweeney, 
126  Ind.  583;  Chapell  v.  Shuee,  117 
Ind.  4S1 ;  Wood  v.  Ostram,  29  Ind.  177. 
In  jurisdictions  where  the  practice  is  to 
allow  cross-appeals  the  appellate  tri- 
bunal directs  the  main  appeal  and  the 
cross-appeal  to  be  consolidated.  Hid- 
dingh  v.  Dempsea,  12  App.  Cases  (H. 
L.),  107. 

'Johnson  v.  Culver,  116  Ind.  2^, 
289.  The  subject  is  fully  considered  in 
Feder  v.  Field,  117  Ind.3S6.  See,  also, 
Cleveland,  etc.,  Co.  v.  Closser,  126  Ind. 
34S,  369. 

2  Shinkle  v.  First  National  Bank,  22 
Ohio  St.  516;  Collins  v.  Davis,  32  Ohio 
St.  76;  Smith  v.  Wright,  71  111.  167. 
See,  generally,  Chicago,  etc.,  Co.  v. 
Peck,  11:  111.  40S;  Wabash,  etc.,  Co.  v. 
Goodwine,  18  Bradw.  (111.  App.)  65. 


PLEADINGS  OF  THE  APPELLEE.  357 

due  request,  secure  the  appellee  just  relief  and  that  such  relief 
can  not  always  be  awarded  by  a  mere  affirmance  of  the  judg- 
ment. There  is  very  little  force,  or,  indeed,  plausibility,  in  the 
argument  sometimes  made  that  the  appellee  should  appeal  if 
not  content  with  the  rulings  of  the  trial  court.  It  may  well  be 
that  he  is  satisfied  to  suffer  some  wrong  rather  than  prolong 
the  litigation,  and  for  that  reason  does  not  himself  prosecute 
an  appeal.  If  the  appellant  elects  to  prolong  the  litigation  he 
has  no  cause  to  complain  because  the  appellee  asks  all  that  he 
is  entitled  to  receive  from  the  courts  of  his  country. 

§  419.  Effect  of  the  Assignment  of  Cross-Errors — If  the  appellee 
is  content  with  the  simple  affirmance  of  the  judgment  from 
which  the  appeal  is  prosecuted  and  asks  no  more,  the  court 
will  pronounce  a  decision  without  noticing  the  assignment  of 
cross-errors.1  According  to  the  decision  in  one  of  our  cases 
an  appellee  can  not  complain  of  a  failure  to  pass  upon  cross- 
errors  duly  assigned  in  case  the  judgment  is  affirmed.2  This 
may  possibly  be  the  correct  general  rule,  but  it  is  not  without 
exceptions,  for  there  are  certainly  cases  where  justice  demands 
that  the  appellee  should  be  awarded  affirmative  relief.  If  a 
complaint  is  incurably  bad  the  appellee  has,  as  we  believe,  a 
right  to  have  it  so  decided,  although  the  judgment  may  be  sus- 
tainable on  other  grounds,  in  a  case  where  such  a  decision  may 
prevent  a  second  action.  Public  policy  requires  that  such  a 
question  should  be  decided  so  that  litigation  may  not  be  use- 
lessly prolonged.3 

§  420.  Groundwork  of  the  Assignment  of  Cross-Errors — The  foun- 
dation for  the  assignment  of  cross-errors  must  be  laid  in  the  trial 
court.  There  the  proper  exceptions  must  be  taken  and  reserved, 
and  there  must  be  filed  the  motions  requisite  to  present  for  re- 
view the  rulings  deemed  erroneous  and  prejudicial  to  the  ap- 

1  Kammerling  v.  Armington,  58  Ind.  not  be  considered.     It  seems  that  some 

384.     See  Huston  v.  Vail,  S4  Ind.  262,  of  the  statements  of  the  opinion  in  that 

26S.     In  Thomas  v.  Simmons,  103  Ind.  case  are  too  broad.     Rochester  v.  Lev- 

538,  546,  it  is  held  that   it"  the  appellee  ering.  104  Ind.  562. 

does  not  insist  upon  his  assignment  of  2  Case  v.  Johnson,  70  Ind.  31,  33. 

cross-errors  the  errors  so  assigned  will  3  State  v.  Harris,  So.  Ind.  363. 


APPELLATE   PROCEDURE. 

pellee.1  It  is  not  within  the  power  of  the  appellee  to  present 
questions  for  the  first  time  on  appeal,  except  possibly  where 
the  complaint  wholly  fails  to  state  a  cause  of  action,  or  where 
there  is  no  jurisdiction  of  the  subject. 

§  421.  Transcript — Where  the  transcript  brought  up  by  the  ap- 
pellant necessarily  presents  the  case  upon  the  cross-errors  as 
well  as  upon  the  errors  assigned  by  appellant,  that  one  transcript 
is  sufficient.2  But  the  appellee  can  not  in  all  cases  compel  the 
appellant  to  bring  up  the  parts  of  the  record  exhibiting  the 
rulings  on  which  cross-errors  are  assigned.3  If,  however,  those 
parts  of  the  record  are  necessary  to  exhibit  the  rulings  on  which 
rest  the  appellant's  assignments  of  errors,  they  must  be  em- 
bodied in  the  transcript,  and  if  they  are  in  the  transcript  the 
appellee  may  take  advantage  of  them.  The  appellant  is  under 
no  obligation  to  present  a  transcript  for  the  benefit  of  the  ap- 
pellee, since  the  statute  gives  him  the  right  to  direct  what  part 
of  the  record  shall  be  certified  up  by  the  clerk,4  and  he  is  not 
required  to  do  any  act  such  as  that  of  presenting  a  transcript 
of  the  complete  record  for  the  benefit  of  his  adversary.5 

§  422.  Notice  of  the  Assignment  of  Cross-Errors  not  required  when 
filed  within  the  time  limited — An  assignment  of  cross-errors  is  a 
pleading  in  due  course,  and  of  such  pleadings  the  appellant 
must  take  notice  without  special  information.  In  filing  such  a 
•pleading  the  appellee  does  no  more  than  what  the  appellant  is 
bound  to  know  may  be  done  as  of  course,  without  special  leave 
or  notice.  This  is  the  effect  of  the  decisions  upon  the  question.6 
But  to  dispense  with  notice  the  assignment  must  be  made  within 
the  time  fixed  ;  if  not  filed  within  that  time  notice. is  essential. 

1  Merritt  v.  Richey,  127  Ind.  400.  submission  of  the  cause  by  the  appel- 

2  Feder  v.  Field,  117  Ind.  3S6;  Mer-  lant."  Perkins'  Practice,  323.  Judge 
ritt  v.  Richey,  127  Ind.  400.  Judge  Buskirk  adopts  this  statement  of  the 
Perkins  says:  "The  appellant  can  only  law.     Buskirk's  Practice,  119. 

assign    errors   occurring    against    him-  3  Feder  v.  Field,  117  Ind.  3S6,  389. 

self.     He  can  not  complain   of  errors  *  R.  S.  1SS1,  §  649. 

in    his   favor.     But    the    appellee    may  5  Hall  v.  King,  29  Ind.  205. 

on  the  appellant's  record,  complain  of  6  Smith  r\  Wright,  71  111.  167;  Bundy 

them,  by  way  of  a  cross-assignment  of  v.  Ophir    Iron    Co.,    35    Ohio    St.   So; 

s,  and  thii'-  bring  them  under  re-  Feder  v.  Field,  117  Ind.  3S6. 
view  on  the  single  appeal,   and   on  the 


PLEADINGS  OF  THE  APPELLE1  359 

§  423.  Time  within  which  Cross-Errors  may  be  Assigned — An  as- 
signment of  cross-errors  may  be  filed,  as  of  course,  at  any  time 
within  sixty  days  after  the  submission  of  the  cause.  If  not 
filed  within  that  time  special  leave  must  be  asked  in  writing 
and  written  notice  served  upon  the  appellant.  A  satisfactory 
excuse  must  be  shown  for  not  making  the  assignment  within 
the  time  designated  or  leave  to  assign  will  be  denied.  The 
general  rule  is  that  the  assignment  must  be  filed  within  one 
year  from  the  time  the  judgment  appealed  from  was  rendered.1 
It  is  evident,  however,  that  this  general  rule  can  not  always 
govern.  There  may,  it  is  clear,  be  circumstances  which  will 
prevent  its  operation.  Thus,  it  may  well  be  that  the  appeal  is 
taken  so  near  the  end  of  the  year  that  compliance  with  the  rule 
is  impossible.  So,  too,  there  may  be  some  element  of  fraud  or 
accident  which  will  take  the  particular  case  out  of  the  general 
rule. 

§  424.  Answer  to  the  Assignment  of  Cross-Errors  not  required — 

The  practice  has  been  to  consider  assignments  of  cross-error 
without  plea  or  answer.2  This  seems  the  correct  practice,  since 
the  fact  that  the  appellant  appeals  justifies,  indeed  requires,  the 
presumption,  that  he  denies  that  there  are  errors  in  his  favor 
precluding  a  reversal,  or  the  award  of  relief  to  his  adversary. 
It  is  not  necessary  to  answer  what  is  presumed  as  matter  of 
law,  nor  would  any  good  purpose  be  subserved  by  an  answer. 
It  is  possible  that  there  may  be  cases  where  a  special  answer 
would  be  proper,  but  they  would  be  extraordinary  ones. 

1  Rule  IV.  do  so.  White  v.  Allen,  9  Ind.  561,  cited 

2  Judge  Perkins  says:  "  The  appellant  by  the  author  quoted,  does  not  touch 
may  answer  errors  assigned  by  the  ap-  the  question.  The  practice  has  been 
pellant  as  in  other  cases."  Perkins'  so  long  continued  and  so  uniform  that 
Practice,  123.  Possibly  he  may,  if  he  it  has  the  full  force  of  a  statutory  rule. 
elects,  answer,  but  he  is  not  bound  to 


CHAPTER  XX. 

SUBMISSION. 


{)  425.    Submission  by  agreement. 

426.  Effect  of  a  submission  by  agree- 

ment. 

427.  Rights  not  waived  by  an  agree- 

ment submitting  the  cause. 
42S.   Forced  submission. 

429.  Submission  on  call. 

430.  Importance  of  the  submission. 

431.  Submission  of  appeals  in  term. 


$  432- 


433- 

434- 

435- 
436- 

437- 


Nature  of  the  notice  required  in 
cases  where  the  appeal  is  in 
term. 

Submission  in  cases  appealed 
upon  notice  under  act  of  1SS5. 

Submission  upon  the  applica- 
tion of  the  appellee. 

Notice  under  the  act  of  18S5. 

Objecting  to  submission. 

Setting  aside  the  submission. 


§  425.  Submission  by  Agreement — Parties  may  submit  a  cause 
by  an  agreement  entered  upon  the  transcript  or  filed  with  the 
clerk.  No  particular  form  is  required  ;  any  form  of  writing 
embodying  an  agreement  to  submit  the  cause  will  be  sufficient. 
The  agreement  must,  however,  be  in  writing  unless  made  in 
open  court.1 

§  426.  Effect  of  a  Submission  by  Agreement— An  agreement  to 
submit  dispenses  with  notice  and  waives  objections  to  process.2 
It  does  not,  however,  waive  substantial  objections  to  the  tran- 
script, for  after  submission  by  agreement  a  certiorari  may  be 
obtained.  A  submission  by  agreement,  as  it  has  been  held, 
waives  some  objections  that  would  not  be  waived  by  a  submis- 
sion under  the  law.  Submission  by  agreement  waives  a  pend- 
ing motion  to  dismiss  the  appeal.3     It  will  waive  defects  in  the 


1  Rule  XV. 

2  Rabb  v.  Graham,  43  Ind.  1,  distin- 
guishing Aylesworthw.  Milford,  38  Ind. 
226;  State  v.  Board, 92  Ind.  133;  Cooper 
v.  Cooper,  S6  Ind.  75;  State  v.  Walters, 
64  fnd.  226;  His^bee  v.  Rodeman  (Ind.), 
2S  N.  E.  Rep.  442. 

ler    V.    Wampler,  S4  Ind.   172; 
Summers    v.  State,    51    Ind.   201.     As 


submission  by  agreement  is  a  con- 
venient, speedy  and  inexpensive  mode 
of  submitting  causes  and  has  but 
little,  if  any,  stronger  effect  than  a 
joinder  in  error,  the  rule  forbidding 
subsequent  pleas  or  motions  should 
not,  it  seems  to  us,  be  too  rigidly  en- 
forced. 


(360) 


SUBMISSION. 


361 


clerk's  certificate  to  the  transcript.1  In  many  cases  it  is  held 
that  it  will  waive  the  objection  that  notice  has  not  been  given 
co-parties.2  In  one  case  it  is  held  that  an  irregularity  in  the 
assignment  of  errors  is  waived  by  such  a  submission,3  but  this 
doctrine  is  one  to  be  limited  and  not  extended.  Error  in  nam- 
ing parties  in  the  assignment  of  errors  is  not  available  after 
submission  by  agreement.4  Other  decisions  illustrate  and  en- 
force the  rule  that  a  submission  by  agreement  waives  errors  in 
the  procedure  connected  with  and  involved  in  the  appeal  unless 
they  are  of  a  very  substantial  character.3  We  are  not  to  be 
understood  as  affirming  that  it  is  only  in  cases  where  there  is  a 
submission  by  agreement  that  irregularities  or  technical  errors 
are  waived  by  the  failure  to  object  before  submission  ;  on  the 
contrary,  we  desire  to  be  understood  as  saying  that  the  general 
rule  is  that  as  to  such  matters  there  is  a  waiver  where  there  is 
no  opportune  objection.  But  it  is  safe  to  say  that,  according 
to  the  decisions6  and  the  practice,7  the  rule  is  more  strictly  ap- 


1  Walker  f.  Hill,  in  Ind.  223;  Cooper 
v.  Cooper,  S6  Ind.  75. 

2  People's  Savings  Bank  v.  Finney,  63 
Ind.  460;  Brooks  v.  Doxey,  72  Ind.  327; 
Field  v.  Burton,  71  Ind.  3S0;  Easter  v. 
Severin,  78  Ind.  540;  Hendricks  v. 
Frank,  S6  Ind.  27S;  Martin  v.  Orr,  96 
Ind.  491;  Burk  v.  Simonson,  104  Ind. 
173;  Hunter  v.  Chrisman,  70  Ind.  439; 
Talbut  v.  Berkshire,  etc.,  Co.,  So  Ind. 
434;  Dobbins  v.  Baker,  So  Ind.  52;  De- 
Haven  v .  DeHaven,  77  Ind.  236. 

3  Ridenour  v.  Beekman,  6S  Ind.  236. 

4  Truman  v.  Scott,  72  Ind.  25S;  Hin- 
kle  v.  Margerum,  50  Ind.  240. 

5  State  v.  Board  of  Commissioners, 
92  Ind.  133;  Wilson  v.  Hefflin,  Si  Ind. 
35;   Hadley  v.  Hill,  73  Ind.  442. 

6  Heller  v.  Clark,  103  Ind.  591.  In 
the  case  cited  a  distinction  was  made 
between  a  forced  submission  under  the 
law  and  a  submission  by  agreement, 
the  court  saying:  "The  third  clause 
of  Rule  XXXIX  is  not  open  to  and 
should  not  receive  the  construction 
which  counsel  place  upon  it.     The  sub- 


mission provided  for  in  such  rule  is  a 
statutory  or  forced  submission,  brought 
about  by  mere  operation  of  law,  and  it 
ought  not  to  be  held,  as  it  seems  to  us, 
that  by  his  mere  failure  to  file  objec- 
tions to  such  submission,  either  party 
agrees  thereto  or  waives  any  right  which 
he  would  otherwise  possess."  The 
language  used  is  rather  broad  and  is  to 
be  understood,  as  is  always  true  of  ju- 
dicial opinions,  with  reference  to  the 
case  before  the  court,  for  the  authorities 
decisively  show  that  some  rights  must 
be  asserted  before  submission  or  they 
will  be  regarded  as  waived.  The  rule 
referred  to  in  the  opinion  from  which 
we  have  quoted  is  now  known  as  Rule 
XVII. 

7  The  practice  is  well  settled  although 
not  evidenced  by  the  reported  decisions. 
The  reason  that  the  practice  in  the 
cases  referred  to,  and  in  similar  ones,  is 
not  shown  by  the  reported  cases  is  that 
the  questions  generally  arise  on  mo- 
tions and  are  disposed  of  without  writ- 
ten opinions. 


362  APPELLATE  PROCEDURE. 

plied  where  there  is  a  submission  by  agreement  than  it  is  where 
the  submission  is  an  enforced  one  under  the  law. 

§  427.  Rights  not  waived  by  an  Agreement  Submitting  the  Cause- 
Substantial  rights  or  rights  of  a  general  jurisdictional  nature 
are  not  waived  by  an  agreement  to  submit,  although  rights  af- 
fecting jurisdiction  of  the  person  are  waived.  Rights  of  the 
nature  last  mentioned,  that  is,  rights  affecting  only  the  jurisdic- 
tion of  the  person,  may,  as  we  have  often  said,  in  substance,  be 
waived  by  a  much  less  decisive  act  than  an  agreement  submit- 
ting the  cause  for  decision.  It  is  implied  in  every  agreement  to 
submit  that  there  is  no  waiver  of  the  right  to  show  that  specifi- 
cations of  error  are  so  destitute  of  force  as  not  to  present  any 
question  for  review.  This  is  so  because  the  party  in  agreeing 
to  submit  the  cause  does  not  consent  that  questions  may  be  con- 
sidered which  are  not  presented  ;  he  simply  consents  that  the 
court  shall  decide  such  questions  as  the  assignment  of  errors 
presents,  waiving  only  irregularities  and  informalities  in  the 
mode  of  alleging  errors  but  waiving  no  material  matter  of  sub- 
stance. Thus,  an  agreement  submitting  a  cause  does  not  waive 
a  failure  to  file  the  transcript  within  the  time  allowed  by  law.1 
An  agreement  to  submit  does  not  waive  the  right  to  object  that 
the  appeal  was  not  perfected  within  the  time  prescribed.2  Such 
an  agreement  does  not  waive  the  right  to  point  out  matters  im- 
properlv  in  the  transcript,  nor  does  it,  as  said  in  the  preceding 
paragraph,  waive  a  right  to  a  certiorari 'in  the  proper  case.3 

§  428.  Foreed  Submission— A  submission  brought  about  other- 
wise than  by  agreement  of  the   parties  is  generally  called  a 

1  Hubertz  v.  State.  50  Ind.  374.   Same  3  Rule  XII.     It  may  be  said  here,  as 

case  on  petition  for   rehearing,  50  Ind.  well  as  elsewhere,  that  the  rules  of  the 

-,-  Appellate  Court  are   substantially  the 

J  Day  v.  School  City  of  Huntington,  same  as  those  of  the  Supreme  Court, 
7  Ind.  280.  This  decision  is  clearly  and  that  in  referring  to  rules  we  mean 
right  tor  the  reason  that  the  time  for  the  Supreme  Courl  rules  unless  other- 
perfecting  an  appeal  is  essentially  ju-  wise  indicated.  As  we  are  explaining 
risdictional,  and  it  can  not  be  prolonged  references,  we  may  also  add  that  the 
by  agreement  contrary  to  the  provis-  reference  "  R.  S."  is  to  the  revision  of 
ions  of  the  lawuponthe  subject.  Ante,  the  Indiana  statutes  made  in  1SS1.  un- 
$§  112,  12S.  l<  ss  otherwise  noted. 


SUBMISSION.  3(33 

"forced  submission,"  although  a  more  appropriate  term  would 
be  "submission  by  operation  of  law."  A  submission  by  opera- 
tion of  law  is  essential  in  all  cases  where  there  is  no  express  or 
implied  agreement  to  submit,'  and  such  a  submission  can  only 
be  effective  where  the  substantial  requirements  of  the  law  re- 
specting the  acts  to  be  done  in  order  to  perfect  an  appeal  have 
been  obeyed.  It  is  in  general  true  that  a  submission  by  opera- 
tion of  law  is  not  regular  or  effective  unless  a  perfected  appeal, 
taken  within  the  time  limited,  is  pending;  if  any  essential  step 
in  the  procedure  has  been  omitted  the  submission  may  be  set 
aside  upon  the  seasonable  and  appropriate  application  of  a 
party  who  has  not  waived  his  rights  or  is  not  in  default.2 

§  429.  Submission  on  Call — Where  there  is  a  perfected  appeal 
there  may  be,  as  a  rule  of  court  provides,  a  submission  on  the 
call  of  the  docket.3  It  is,  however,  optional  with  an  appellee, 
where  the  case  comes  under  the  rule  of  court,  to  either  submit 
the  case  or  obtain  an  order  dismissing  the  appeal.  The  change 
in  the  practice  wrought  by  the  act  of  18854  and  the  rule  based 
upon  it  have  rendered  the  rule  of  court  of  very  little  practical 
importance,  but  it  is  still  in  force  and  there  may  be  cases,  al- 
though rare  ones,  in  which  it  may  be  invoked. 

§  430.  Importance  of  the  Submission — It  is  important  that  a 
case  should  be  properly  submitted  for  the  reason  that  it  is  not 
ripe  for  decision  until  after  submission,5  and  for  the  further  rea- 
son that  the  time  for  filing  briefs  runs  from  the  date  of  the  sub- 
mission. Thus,  in  the  case  of  appeals  in  term  the  submission 
takes  place  by  operation  of  law  when  the  case  has  been  in  the 
appellate  tribunal  for  thirty  days.    So,  where  the  appeal  is  upon 

1  In   Archey    v.  Knight,  61  Ind.  311,  2  Johnsons.  Miller,  43  Ind.  29;  Burk- 

314,  it  is  held  that  if  a  party  has  actual  am  v.  McElfresh,  SS  Ind.  223.  See  Riley 

notice  of  an  appeal  and  does  such  acts  v.  Murray,  8  Ind.  354;  Board  v.  Brown, 

as   a   party  would   do  who   proceeded  14  Ind.  191. 

upon  the  theory  that  there  had  been  an  3  Rule  XV. 

effective  submission,  he  can  not,  after  *  Elliott's   Supp.,  §  2S. 

long  delay,    successfully    apply   to    set  5  Judge  Buskirk  says:     "  A  cause  can 

aside  the   submission,  although  had  he  not  be  considered    or  decided   by  the 

proceeded    promptly    his     application  Supreme  Court  until  it  is  submitted." 

might  have  been  granted.  Buskirk's  Pr.  291. 


364  APPELLATE  PROCEDURE. 

notice  the  submission  takes  place  by  operation  of  law  at  the 
expiration  of  the  time  fixed  by  the  statute  and  the  rule  framed 
to  give  it  practical  effect.1 

§431.  Submission  of  Appeals  in  Term — An  appeal  in  term, 
'«  when  perfected  within  the  time  limited  "  is  deemed  submitted 
within  thirty  days  after  the  transcript  is  filed  in  the  office  of  the 
clerk  of  the  Supreme  Court.2  The  act  of  November,  1885, 
contains  the  provision  of  which  we  have  given  the  substance, 
and  also  adds,  and  within  thirty  days  "  after  the  notice  is  given 
as  above  required."  The  act,  as  it  has  been  held  in  a  number 
of  unreported  cases,  does  not  require  notice  to  be  given  in  cases 
of  appeals  in  term.  Its  framers  evidently  had  in  mind  the 
provisions  of  the  statute  regarding  the  notice  required  in  other 
cases  than  term  appeals.  No  statute  can  be  construed  as  an 
independent  and  isolated  fragment,  but  must  be  taken  in  con- 
nection with  the  great  principles  of  the  law  and  with  other  stat- 
utes.3 So  that  it  is  proper  and  necessary  to  look  to  other  stat- 
utes and  to  the  general  rules  of  law.  Regard  must  be  had  to 
the  statute  providing  for  notice  as  well  as  to  the  statute  provid- 
ing for  appeals  in  term,  and,  taking  these  statutes  into  consid- 
eration, it  is  clear  that  the  legislature  did  not  mean  to  change 
the  law  respecting  appeals  in  term.  The  act  does  require 
either  a  perfected  appeal  in  term,  that  is.  one  where  the  law  has 
been  fully  complied  with,  by  praying  an  appeal,  filing  the  bond 
and  the  like,  or  an  appeal  upon  notice,  but  it  does  not  require 
a  notice  to  bring  the  parties  into  court  where  there  is  an  effec- 
tive appeal  in  term.  The  construction  here  placed  upon  the 
act  of  1885  respecting  appeals  in  term  is  that  given  it  by  the 
rules  of  the  court1  and  that  acted  upon  by  the  bar.     The  con- 

1  Elliott's  Supp.,  §  28;  Rule  XVII.  visions  of  the  statute  respecting  appeals 

2  Elliott's  Supp.,  §  28;   Rule  XVII.  in  term  as  well  as  violate  the  principle 

3  Humphries  v.  Davis,  ioo  Ind.  274,  referred  to  in  the  text.  In  the  case  of 
2S4;  Bradley  v.  Thixton,  117  Ind.  255;  Holloran  v.  Midland  RV  Co.  (Ind.),  28 
Morrison  v.   Jacobv,  114   Ind.  84;   Chi-  X.  E.  Rep.  549,  it  is  asserted  that  notice 

etc.,  Co.  v.  Summers,  113  Ind.  10;  is    not   required   where   the   appeal    is 

Robinson  v.  Rippey,  in  Ind.  112.     To  taken  in  term  time. 

mstrue  the  act  of  1885  as  to  require         4  See    the    last    paragraph   of    Rule 

notice    where    the    appeal    is    taken    in  XVII.     It   has    been  so    construed    in 

term  mpletely  nullify  the  pro-  many    instances    where    the    question 


SUBMISSION.  3(]5 

elusion,  upon  principle,  must  be  that  no  notice  is  required  to 
bring  the  appellee  into  court  where  an  appeal  is  fully  perfected 
in  term  and  that  the  cause  is  to  be  regarded  as  submitted  thirty 
days  after  filing  the  transcript  in  the  office  of  the  clerk  of  the 
Supreme  Court.  And  this  is  the  effect  of  the  practical  exposi- 
tion given  the  statute. 

§  432.  Nature  of  the  Notice  required  in  cases  where  the  Appeal  is 
in  Term — The  notice  provided  for  in  appeals  in  term  is  not  a 
notice  of  the  appeal  but  a  notice  that  submission  has  been 
made.1  There  is  a  radical  difference  between  a  notice  to  par- 
ties of  an  appeal  and  notice  of  an  entry  made  after  the  appeal. 
The  notice  of  the  appeal  is  essential  to  jurisdiction  of  the  per- 
son, the  other  is  notice  of  a  step  taken  after  the  acquisition  of 
jurisdiction.  The  notice  of  the  submission  is  given  by  the 
clerk,  not  by  the  parties,  and  its  object  is  to  convey  informa- 
tion of  a  step  taken  in  the  cause,  but  it  is  not  essential  to  juris- 
diction, nor,  indeed,  to  the  validity  of  the  submission.  The 
duty  of  giving  notice  of  the  submission  is  enjoined  upon  the 
clerk,  and  his  neglect  or  refusal  to  perform  it  might,  possibly, 
entitle  a  party  to  an  extension  of  time  for  the  filing  of  a  brief,  or 
to  some  relief  of  a  similar  nature,  provided  a  satisfactory  show- 
ing is  made,  but  it  would  certainly  not  entitle  him  to  assail  the 
jurisdiction  or  to  challenge  the  effectiveness  of  the  submission. 
The  notice  comes  after  jurisdiction  attaches  and  after  the  cause 
has  been  submitted  under  the  law.  It  conveys  information  of 
what  has  been  done.  It  is  clear,  therefore,  that  the  parties  in 
court  are  not  absolved  from  the  duty  which  rests  upon  all  par- 
ties duly  given  "  their  day  in  court,"  and  that  duty  is  to  take 
notice  of  the  proceedings  taken  in  the  cause. 

§  433.  Submission  in  cases  Appealed  upon  Notice  under  the  Act  of 
1885 — By  force  of  the  act  of  1885  appeals  after  term  are  "re- 
garded as  submitted  after  the  expiration  of  thirty  days  from  the 
date  of  the  service  of  the  notice  upon  the  appellee  of  the  taking 
of  the  appeal."2     The  law  submits  the  cause  without  any  formal 

came  up  on  motions  respecting  the  fil-         '  Rule  XVII. 

ing  of  briefs,  the  reinstatement  of  dis-         2  Elliott's  Sup.,  §  2S. 

missed  appeals  and  the  like. 


366  APPELLATE  PROCEDURE. 

or  direct  request  or  motion  upon  the  part  of  the  parties,  where 
notice  of  the  appeal  has  been  effectively  given.  The  clerk  en- 
ters the  formal  submission  but  the  submission  is  really  made  by 
the  statute. 

§  434.   Submission  npon  the  Application  of  the  Appellee — The 

rule  secures  to  the  appellee  a  right  to  enforce  submission.  The 
delay  incident  to  notice  bv  publication  may  be  obviated  if  the 
appellee  so  desires,  by  filing  the  request  and  giving  the  notice 
provided  for  by  the  rule.  The  acts  required  of  the  appellee 
are  so  fully  specified  by  the  rule  of  the  court  that  there  is  no 
necessity  to  speak  of  the  procedure  at  length. 

§  435.  Notice  Under  the  Act  of  1885— The  act  of  1885  is  con- 
fused and  obscure,  and  unaided  by  the  rule  of  court  would  be 
almost,  if  not  quite,  incapable  of  practical  enforcement.  But 
aided  by  the  rule  and  the  practice  which  has  grown  up  under 
it,  there  is  no  longer  very  serious  difficulty  in  giving  effect  to 
the  act.  It  may  now  be  regarded  as  firmly  settled  that  only 
one  notice  is  required  by  the  act,  that  is  the  notice  of  the  ap- 
peal '  If  notice  of  the  appeal  is  properly  given  no  other  notice 
is  required,  except  that  given  by  the  clerk  after  the  order  of 
submission  has  been  entered.  Where  personal  notice  is  given 
to  the  party  or  his  attorney,  ten  days'  notice  is  sufficient.  Where 
the  notice  is  by  publication  thirty  days'  notice  is  required.  But 
a  submission  can  not  be  enforced  against  the  appellee  until 
thirty  days  after  notice  by  publication  is  complete  where  notice 
is  given  in  that  mode  ;  where  there  is  personal  notice  a  sub- 
mission can  not  be  forced  until  thirty  days  after  the  notice  has 
been  given.  Of  course,  no  notice  is  effective  until  the  time 
fixed  has  expired.  It  is  hardly  necessary  to  suggest  that  we 
are  here  speaking  of  forced  submissions  and  are  not  referring 
to  submission  by  express  agreement,  or  by  an  agreement  im- 
plied from  acts  or  conduct. 

§  436.  Objecting  to  Submission — An  appellee  may,  for  good 
cause,  properly  shown,  resist  a  submission.     Where  a  resistance 

1  In  other  words   the  one  notice  ac-     been  filed  and  that  it  will  be  submitted 
twofold   purpose:    it  in-     at  the  time  designated  therein. 
i   the  appellee  that  an  appeal  has 


SUBMISSION.  3(57 

is  made  the  appellee  is  required  to  file  written  objections  and 
to  accompany  the  objections  by  a  verified  statement  that  they 
are  made  in  good  faith.  When  such  objections  and  such  ver- 
ified statements  are  filed  the  clerk  shall  not  enter  a  submission 
but  shall  report  the  papers  to  the  court.1 

§  437.  Setting  Aside  a  Submission — A  submission  may  be  set 
aside  for  cause  shown,  but  it  will  not  be  set  aside  as  of  course. 
Where  the  record  does  not  fully  disclose  the  grounds  upon 
which  the  motion  to  set  aside  proceeds,  the  motion  must  be  veri- 
fied or  supported  by  affidavit.  Where  a  submission  is  entered 
the  presumption  in  the  absence  of  countervailing  facts  is  that 
it  was  duly  made,  so  that  it  is  incumbent  upon  a  party  who  as- 
sails a  submission  to  remove  this  presumption.  Notice  must  be 
given  of  the  application  to  set  aside  a  submission,  for  such  an 
application  falls  within  the  general  rule  requiring  notice  of  mo- 
tions.2 Where  a  submission  is  once  effectively  made  and  en- 
tered it  remains  in  force  until  the  final  decision  of  the  case  al- 
though a  rehearing  may  be  granted.3 

1  Rule  XVI.  3  Rule  XXXVII. 

1  Rules  VII,  XIV. 


CHAPTER   XXL 


BRIEFS    AND   ARGUMENTS. 


4438- 

Briefs — Definition. 

$  449. 

439- 

General  frame  of  the  brief. 

440. 

Showing  the  manner  in  which 
the  questions  arise. 

45°- 

441. 

Stating  the  facts. 

451- 

442. 

Method  of  stating  the  facts. 

443- 

Correcting  erroneous  statements 
of  facts. 

452- 

444. 

Making  the  points. 

453- 

445- 

Showing  rulings  to  be  wrong. 

454- 

446. 

Stating  propositions  of  law. 

455- 

447- 

Citing  authorities. 

456- 

448. 

Waiver  of  preliminary  motions 

by  filing  brief. 

457- 

Time  within  which  the  appel- 
lant's brief  must  be  filed. 

Brief  on  cross-errors — Time  of 
filing. 

Appellee's  brief  on  the  appel- 
lant's assignment  of  errors. 

Extension  of  the  time  for  filing 
briefs. 

Oral  arguments. 

Application  for  oral  arguments. 

Limitation  of  oral  arguments. 

Statement  of  propositions  for 
argument. 

Interchange  of  points  for  argu- 
ment. 


§  438.  Briefs— Definition— In  American  appellate  procedure 
a  brief  is  very  different  from  the  paper  called  by  that  name 
prepared  by  an  English  attorney  for  an  English  counselor  or 
barrister.1  Under  our  system  a  brief  is  a  written  presenta- 
tion of  the  questions  involved  in  a  forensic  controversy  and  of 
the  matters  of  fact  and  of  law  which  demand  investigation. 
The  primary  object  is  to  convey  information  to  the  court,  and 
this  can  not  be  done  without  clearly  stating  the  manner  in 
which  the  controverted  points  arise,  the  facts  which  constitute 


1  Parker  v.  Hastings,  12  Ind.  654; 
Gardener  v.  Stover,  43  Ind.  356;  De- 
ford  v.  Urbain,  42  Ind.  476;  Roy  v. 
State,  58  Ind.  378;  Harrison  v.  Hedges, 
60  Ind.  266;  Millikan  v.  State,  70  Ind. 
283;  Martin  v.  Smith.  57  Ind.  62;  Ar- 
buckle  v.  Biederman,94.Ind.  16S;  Land- 
werlen  v.  Wheeler,  106  Ind.  523;  Now- 
lin  v. Whipple,  89  Ind.  490;  Northwest- 
ern  Mutual   Life   Ins.  Co.  v.  Haezlett, 


105  Ind.  212;  Bray  v.  Franklin  Life 
Ins.  Co.,  6S  Ind.  6;  Wilson  v.  Hollo- 
wav,  70  Ind.  407;  Newcomer  v.  Hutch- 
ings,  96  Ind.  119;  Irwin  v.  Lowe.  89 
Ind.  540;  Powers  v.  State,  87  Ind.  144; 
Louisville,  etc.,  Co.  v.  Donnegan,  in 
Ind.  179;  Bybee  v.  State,  94  Ind.  443; 
City  of  Anderson  v.  Neal,  88  Ind.  317, 
320;  Wright  v.  McLarinan,  92  Ind.  103. 


(368) 


BRIEFS  AND  ARGUMENTS.  369 

the  groundwork  of  the  legal  dispute,  and  the  governing  pro- 
positions of  law.  A  subsidiary  object  is  to  convince  the  court 
where  the  law  and  justice  of  the  case  lie.  In  every  well  pre- 
pared brief  will  be  found  a  concise  and  clear  statement  of  the 
manner  in  which  the  questions  arise,  a  succinct  and  methodical 
statement  of  the  facts,  and  a  perspicuous  array  of  arguments 
and  authorities. 

§  439.  General  Frame  of  the  Brief — The  frame  of  a  brief  deter- 
mines its  method,  and  method  is  of  great  importance  in  con- 
veying information  or  producing  conviction.1  If  the  method 
adopted  leads  to  illogical  cross  divisions,  to  the  omission  of 
material  points,  or  to  the  violation  of  logical  order,  the  result 
will  be  a  brief  of  which  no  lawyer  should  be  proud.  The  frame 
work,  if  laid  out  in  symmetrical  proportions  and  in  due  order, 
will  add  greatly  to  the  power  of  the  brief  and  do  much  to  dis- 
pel confusion  and  clear  away  obscurities.  Tt  is,  of  course,  not 
possible  to  lay  down  a  general  rule  which  will  fit  all  cases,  for 
in  some  cases  it  is  better  to  begin  with  a  statement  of  the  ques- 
tions presented  and  the  manner  in  which  they  arise;2  in  others 
it  is  better  to  begin  with  a  statement  of  the  facts. 

1  Emerson,  as  is  well  known,  ranked  ification  shall  state  as  particularly  as 
method  in  the  chief  place,  and  asserted  may  be,  in  what  the  decree  is  alleged  to 
that  method  constituted  the  great  vir-  be  erroneous.  When  the  error  alleged 
tue  of  an  argument  or  address.  It  may  is  to  the  admission  or  rejection  of  evi- 
be  that  the  great  thinker  somewhat  dence  the  specification  shall  quote  the 
over-valued  method,  but,  however  this  full  substance  of  the  evidence  admitted 
may  be,  it  is  undoubtedly  true  that  it  is  or  rejected.  When  the  error  alleged  is 
one  among  the  highest  virtues  of  argu-  to  the  charge  of  the  court,  the  specifi- 
mentative  discourse.  Choosing  the  cation  shall  set  out  the  part  referred  to 
wrong  method  is  much  like  selecting  in  totidcm  verbis,  whether  it  be  instruc- 
tive wrong  road;  it  is  possible  to  reach  tions  given  or  instructions  refused.  A 
the  destination  intended  but  the  way  brief  of  the  argument,  exhibiting  a  clear 
will  be  long  and  crooked.  statement  of  the  points  of  law  or  fact 

2  The  following  extracts  from  Rule  to  be  discussed  with  a  reference  to  the 
XXI  of  the  Supreme  Court  of  the  pages  of  the  record,  and  the  authorities 
United  States  suggest  a  good  plan  for  relied  upon  in  support  of  each  point." 
framing  a  brief:  "A  concise  abstract,  This  rule  has  been  strictly  enforced, 
or  statement  of  the  case,  presenting  Ryan  v.  Koch,  17  Wall.  19;  Portland 
succinctly  the  questions  involved  and  Co.  v.  United  States,  15  Wall.  1;  Lucas 
the  manner  in  which  they  are  raised,  v.  Brooks,  18  Wall.  436;  School  Dis- 
In  cases  brought  up  by  appeal  the  spec-  trict  v.  Ins.  Co.,  101  U.  S.  472.     We  do 

24 


370  APPELLATE  PROCEDURE. 

§  440.  Showing  the  Manner  in  which  the  Questions  Arise — It  is 
necessary  that  the  appellate  tribunal  should  be  fully  informed 
as  to  the  manner  in  which  the  questions  arise  and  where  and 
how  they  are  presented  by  the  record.  It  is  not  enough  to  as- 
sert that  there  is  a  designated  question  in  the  record  ;  general 
assertions  are  valueless.  The  manner  in  which  the  question 
assumed  to  be  presented  arose  is  required  to  be  specifically  and 
particularly  stated.  It  is  to  be  constantly  kept  in  mind  that  the 
brief  should  supply  the  court  with  information  and  that  the 
court  must  be  referred  to  the  record  to  verify  the  statements 
of  the  brief.  Not  only  so,  but  more,  for  the  court  is  unac- 
quainted with  the  record,  and  hence  it  is  incumbent  upon  coun- 
sel to  specifically  refer  to  the  particular  part  of  the  record  which 
exhibits  the  ruling  sought  to  be  brought  under  investigation. 
In  other  words,  it  is  the  duty  of  counsel  to  acquaint  the  court 
with  the  parts  of  the  record  of  which  an  examination  is  desired. 
The  court  will  not  hunt  through  the  record  to  discover  the  parts 
of  it  which  counsel  assume  exhibit  the  rulings  which  they 
desire  considered.1  In  all  cases  where  a  knowledge  of  the 
pleadings  is  necessary  to  enable  the  court  to  fully  and  clearly 
understand  the  questions  discussed  there  should  be  a  clear  and 
accurate  synopsis  of  the  pleadings.  It  is  seldom  necessary  to 
copy  any  pleading  at  full  length — indeed,  in  most  cases  confu- 
sion is  produced  by  doing  so — but  there  may  be  cases  where 
the  decision  depends  upon  the  exact  language  emploved  by  the 
pleader,  and  in  such  cases  so  much  of  the  pleading  as  is  neces- 
sary  to  adequately  present  the  question  should  be  literally  copied. 

not,  of  course,  refer  to  this  rule  as  con-  Woods,  67  Ind.  319;  Bray  v.  Franklin 
trolling,  but,  on  the  contrary,  refer  to  Life  Ins.  Co.,  6S  Ind.  6;  Sanders  v.  Scott, 
it  as  merely  suggestive  of  the  general  68  Ind.  130;  Martin  v.  Martin,  74  Ind, 
frame  of  a  brief.  It  is  unnecessary  un-  207;  City  of  Anderson  v.  Neal,  88  Ind. 
der  our  practice  to  be  as  specific  as  un-  317;  Louisville,  etc.,  Co.  v.  Donnegan, 
der  the  Federal  rule,  for  the  rule  really  11 1  Ind.  179.  The  rules  of  the  court 
makes  what  is  there  denominated  a  are  explicit  upon  this  subject.  Even  a 
brief,  both  a  brief  and  an  assignment  of  supersedeas  brief  must  refer  to  the  tec- 
errors,  ord  "by  pages  and  lines."  Rule  XXII. 
'This  is  an  inexorable  rule  and  it  The  requisites  of  a  brief  are  pointed  out 
has  been  enforced  in  very  many  cases,  in  Rule  XXVI.  The  courts  every  v 
Brunner  v.  Brennan,  49  Ind.  9S;  Low-  require  a  strict  compliance  with  such 
der  v.   Lowder,   58   Ind.  538;    Rout  v.  rules. 


BRIEFS   AND   ARGUMENTS.  371 

WhiJe  the  general  rule  is  that  condensation,  and  not  expansion, 
increases  the  power  of  a  brief,  there  are,  nevertheless,  cases 
where  a  full  and  complete  statement  is  indispensably  necessary.1 
Where  a  synopsis  of  the  pleadings  is  all  that  is  required,  their 
substance  only  should  be  given.  It  weakens  a  brief  to  over- 
load it  with  useless  matter,  and  it  is  a  serious  mistake  to  sup- 
pose that  a  brief  is  a  mere  reproduction  of  the  record. 

§  441 .  Stating  the  Facts — It  is  well  enough  to  say,  at  the  outset, 
that  there  is  an  essential  difference  between  the  evidence  and 
the  facts.2  It  is  one  thing  to  state  facts  and  another  to  state 
evidence.  "Facts  are  the  ultimate  conclusions  established  by 
the  evidence,"3  hence  the  evidence  is  the  mode  or  means  of 
proof,  not  the  result  of  proof.  In  affirming  that  facts  must  be 
stated  it  is  not  implied  that  the  evidence  must  be  rehearsed  ; 
on  the  contrary,  the  affirmation  of  the  proposition  that  the  facts 
must  be  stated,1  excludes  the  implication  that  the  evidence 
must  be  set  forth.  It  may  sometimes  be  necessary  to  state  the 
evidence,  but  not  often.  Where  the  objection  relates  to  a  par- 
ticular part  of  the  evidence,  then,  that  part  may  be  stated  and 
the  substance  of  such  other  evidence  as  is  connected  with  it 
given  in  short  form,  but  this  is,  as  a  general  rule,  a  matter 
which  comes  after  the  general  facts  of  the  case  have  been  stated.5 

1  It  is  a  mistake  to  suppose  that  the  pleadings,  special  verdicts,  and  special 
duty  of  counsel  is  invariably  performed  findings  must  state  the  facts  and  notev- 
by  a  general  reference  to  a  pleading,  to     idence. 

a  series  of  instructions,  or  the  like,  for  3  Kirkpatrick  v.  Reeves,  121  Ind.  280. 

it  is  sometimes — although  rarely — nee-  See,  generally,  Louisville,  etc.,  Co.  v. 

essary  to  set  forth   the  pleading  or  the  Cauley,  119  Ind.  142;  Phelps  v.  Smith, 

particular    instruction.      Rule    XXVI.  116  Ind.  387;  Bartholomew  v.  Pierson, 

While  it  is   true   always  that  the  parts  112  Ind.  430;   Stix   v.  Sadler,   109  Ind. 

of  the  record  requisite  to  a  full  under-  254. 

standing  of  the  question   must  be  re-  *  There  may  be  instances  where,  for 

ferred   to   with   particularity,   it   is  not  the  purpose  of  showing  the  effect  of  a 

always  true  that  such  a  reference  is  of  particular  item  of  evidence,  it  is  proper 

itself  sufficient.  to  quote  literally  from  the  record,  but 

2  There  is  an  essential  and  important  this  is  a  different  matter  from  that  dis- 
difference  between  the  facts  and  the  cussed  in  the  text,  for  what  is  there  re- 
evidence.  It  is  one  thing  to  rehearse  ferred  to  is  the  general  statement  of  the 
the  evidence  and  quite  another  to  state  facts  of  the  case. 

the  facts.  Work  of  The  Advocate,  24,  5  The  general  statement  of  facts 
25.  The  difference  is  illustrated  in  the  should  be  such  as  to  put  the  court  in 
cases  enforcing  the  familiar  rules  that     possession  of  the  general  nature  of  the 


APPELLATE    PROCEDURE. 

§  442.  Method  of  Stating  the  Facts — A  clear  and  concise  state- 
ment of  facts,  neither  too  prolix  nor  yet  too  meager,  is  an  ad- 
mirable thing.  It  has  been  .said  again  and  again  that  he  who 
can  "  well  state  the  facts  is  a  man  of  rare  ability/'1  Facts  ex- 
tracted from  the  evidence  and  grouped  together  in  an  orderly 
method  are  always  more  quickly  perceived  and  more  clearly 
comprehended  than  facts  loosely  stated.  Method  is  one  of  the 
chief  virtues  of  the  statement  of  facts  for  an  appellate  tribunal. 
The  statement  there  required  is  very  different  from  that  re- 
juired  in  the  address  to  the  jury,  for  there  the  evidence  is  not 
weighed  nor  the  probabilities  measured.  Mere  supporting 
arts  or  assisting  probabilities  are  of  no  value  in  the  brief  on 
appeal.  The  leading  and  controlling  facts  are  the  only  ones  to 
which  the  appellate  tribunal  can,  as  a  general  rule,  give  a  con- 
sideration. It  is  in  general  true  that  the  facts  should  be  stated 
in  correct  chronological  order,2  but  this  rule  does  not  always 
hold  good  ;  indeed,  no  general  rule  can  be  framed  which  will 
be  free  from  exceptions.  But  whatever  the  order  adopted,  to 
that  order  there  should  be  unvarying  adherence.  Information 
so  conveyed  as  to  secure  an  abiding  lodgement  in  the  minds  of 
the  court  is  the  leading  object  of  a  statement  of  facts,  and 
whatever  method  is  most  likely  to  accomplish  that  object  is  the 
best.  At  the  outset,  as  suggested  by  the  author  quoted  in  the 
note,  clearness  and  strength  are  gained,  and,  indeed,  can  only 

case,  ami   specific  questions  should  be  duce  order  out  of  chaos,  is  a  great  mis- 
taken up  afterwards  in  logical  order.  take.     You  must  start  with  some  clear 
1  See  fudge  Dillon's  article  on  "Stat-  and  logical  theory  as  to  what   the  facts 
ing  the  Case"  in   Rhetoric  as   an   Art  really  are,  for  if  your  facts  do  not  com- 
of  Persuasion,  28;   Washburn's  "  Study  mend    you   to    the   appellate    court,   it 
and    Practice    of   the    Law,"    181;     23  may  look  with  some  suspicion  on  your 
tral     Law   Journal,    223.    "But,    if  logical  conclusions,  howe\  cr  convincing 
you  determine    to    appeal,    when    you  they  may  be." — On  making  a  Brief  on 
got    the    appeal  book  into  shape  Appeal,  New  York    Law  Journal.     In 
•     a   very  careful  statement  of  the  an  article  on  the  preparation  of  briefs, 
This  is  tar  more  important  than  Judge  Dillon  says  of  stating  the  facts: 
ipears  to  many  lawyers,  especially  "  Not  only  the  first  step,  but  the  most 
where  a  case  is  long  and  complicated,  important.     Not  only  the  most  impor- 
and    where   the  facts  to  be  intelligible  tant,  but  it  may  surprise  the  legal  reader 
must  he  extracted  from  a  large  mass  of  to  add,  the  most  difficult.''''  ^Am.Law 
evidence    and   grouped    together.      To  Rec.  53,  54.     The  italics  are  Judge  Dil- 
suppose  the  court  will  do   for  you  what  Ion's. 
you  will    not  do  for  yourself,   and   pro-  2  Buskirk's  Pr.,  325. 


BRIEFS   AND  ARGUMENTS.  373 

be  certainly  secured  by  forming  a  definite  theory.  In  the  ab- 
sence of  such  a  theory  the  grouping  will  be  irregular,  the  or- 
der disconnected,  and  the  entire  brief  obscure  and  feeble. 

§  443.  Correcting  Erroneous  Statements  of  Fact— The  presump- 
tion is  that  facts  stated  in  the  brief  of  counsel  are  correctly 
stated  and  that  the  record  is  truthfully  represented.  As  it  has 
been  said,  "  counsel's  statement  of  the  facts  is  a  certificate  of 
fairness  and  accuracy,"  and  the  courts  will  assume,  in  the  ab- 
sence of  a  countervailing  showing,  that  the  facts  are  fairly 
stated  and  that  there  is  neither  intentional  wrong  nor  innocent 
mistake.  It  is,  therefore,  incumbent  upon  counsel  who  believe 
that  the  facts  are  incorrectly  stated,  or  the  record  not  accurately 
represented,  to  contradict  or  explain  the  statements  of  their 
opponents.  If  they  do  not  make  the  necessary  corrections  or 
explanations  the  court  will  accept  that  made  by  their  adversar- 
ies as  true  and  accurate.1 

§  444.  Making  the  Points— Points  rule  cases  on  appeal  as  well 
as  in  the  trial  court.2  A  "  point "  has  been  defined  as :  "Any 
material  question,  particularly  of  law,  arising  in  connection 
with  the  determination  of  a  cause."  It  is  essential  that  all 
points  be  made  in  the  brief,  and  properly  made ;  if  not  so 
made  they  are  waived.  Many  cases  affirm  this  doctrine,  al- 
though the  phrase  employed  usually,  not  always,  however,  is, 
all  questions  not  made  in  the  briefs  are  regarded  as  waived.3 

1  Rule  XXVI  provides  that,  "  If  a  patrick,  97  Ind.  42;  Wright  v.  Abbott, 
statement  of  fact  is  made  by  counsel  85  Ind.  154;  Stockton  v.  Lockwood,  S2 
and  not  questioned  or  explained  by  op-  Ind.  15S;  Fairbanks  v.  Meyers,  9S  Ind. 
posing  counsel,  it  will  be  deemed  by  the  92;  Ohio,  etc.,  Co.  v.  Nickless,  73  Ind. 
court  to  be  accurate."  This  provision  3S2;  Daniels  v.  McGinnis,  97  Ind.  549; 
does  no  more  than  give  expression  to  a  Kennell  v.  Smith,  100  Ind.  494;  Pitts- 
general  doctrine  that  has  long  pre-  burgh,  etc.,  Co.  v.  Williams,  74  Ind. 
vailed-  462.     Many  other  cases  may  be  found 

2  Memoir  of  Lord  Abinger,  61-62.  In  in  our  reports.  As  illustrating  the  ap- 
Gray  v.  Schenck,3  How.  Pr.  231,  it  was  plication  of  the  rule,  McClure  v.  State. 
held  that:  "The  heads  of  an  argument  116  Ind.  169;  Staser  v.  Hogan,  120  Ind. 
together  with  the  authorities  cited,  but  207;  State  v.  McGinnis,  17  Ore.  $32,  20 
not  the  argument  at  length,  are  em-  Pac.  Rep.  632;  Tucker  v.  Constable,  16 
braced  under  the  term  points."  Work  Ore.239;  Faris  v.  Lampson,  73  Cal.  190; 
of  the  Advocate,  29,  49,  443.  Brown  v.  State,  S2  Ga.  224,  7  S.  E.  Rep! 

3  Western    Union    Tel.    Co.   v.    Kil-  915. 


APPELLATE   PROCEDURE 


Points,  or  propositions,  distinctly  stated  and  conspicu  >asly  dis- 
played are  quickl)-  discerned,  their  force  is  apprehended  with- 
out effort  and  their  impression  is  deeper  and  more  lasting  than 
that  of  points  huddled  together  in  disorderly  array.1 

§  445.  Showing  Rulings  to  be  Wrong — It  is  not  enough  to  assert 
in  general  terms  that  a  ruling  of  the  trial  court  is  wrong  •  a  fair 
effort  must  be  made  to  prove  that  it  is  wrong  or  the  point  will 
not  be  considered  as  having  been  made.  Counsel  can  not  make 
a  point  in  an  appellate  tribunal  by  a  naked  general  assertion, 
for  such  an  assertion  will  not  be  heeded.  Even  if  counsel  do 
not  succeed  in  convincing  the  higher  court  that  the  trial  court 
erred  they  will,  nevertheless,  gain  something  which  would  oth- 
erwise be  lost,  by  an  effort  to  do  so,  inasmuch  as  they  will  secure 
notice  of  the  point  stated  unless,  indeed,  it  is  wholly  without 
merit.  But,  in  order  to  secure  so  much  as  notice  of  the  point 
stated  they  must  support  it  by  a  fair  effort,  adducing  arguments 
and,  if  they  can,  citing  authorities.2     A  bare  designation  of  a 


1  "Judges,"  says  a  lawyer  of  experi- 
ence and  ability,  "  who  desire  to  refer 
quickly  to  a  certain  part  of  an  argu- 
ment must  be  seriously  hindered  some- 
times by  this  slovenly  lack  of  proper 
arrangement  by  which  the  pages  are 
closely  huddled  up  and  every  observa- 
tion is  on  a  typographical  level  with 
The  points  themselves  should 
he  printed  in  a  bold,  heavy-faced  letter, 
and  subordinate  matter  may  be  put  in 
capitals,  italics  or  common  type,  ac- 
cording to  its  importance.  Every  au- 
thority should  be  in  a  separate  line. 
Generous  spacing  should  he  made,  and 
indentation  can  be  put  to  good  use. 
One  brief — and  one  only — that  we  have 
come  across  had  a  line  at  the  top  of 
each  page,  stating  the  contents  of  the 
;  this  is  especially  useful  in  refer- 
ring to  summaries  of  testimony.  This 
matter  is  just  as  important  as  emphasis 
in  oral  argument."  43  Albany  Law 
Journal,  345.  Bu1  some  brief-makers 
err    in    going    to    extremes,    ami     they 


are  thus  criticised  in  a  law  period- 
ical: "Some  lawyers  in  having  a  brief 
printed,  use  every  variety  of  type  that 
is  in  the  printing  office,  from  small  ital- 
ics to  gigantic  capitals.  We  have  even 
seen  a  large  hand  pointing  to  particu- 
larly impressive  passages.  All  this  is 
an  absurdity,  hut  it  is  only  an  exaggera- 
tion of  what  is  the  true  theory  of  a 
brief,  that  is  to  call  the  attention  of  the 
court  in  some  way  to  the  points  which 
are  deemed  especially  important.  One 
of  the  best  ways  of  doing  this  is  to 
print  such  passages  in  full-faced  letters." 
On  making  a  Brief  on  Appeal,  New 
York  Law  Journal. 

2  Liggett  v.  Firestone,  102  Ind.  514; 
Northwestern,  etc.,  Co.  v.  Hazelett,  105 
Ind.  212;  City  of  Anderson  v.  Neal,88 
Ind.  317;  Irwin  v.  Lowe,  89  Ind.  540. 
Raster  r.  Raster,  93  Ind.  5S1;  Collins 
v.  McDuffie,  S9  Ind.  562;  Millikan  v. 
Stati  .  70  [nd.283;  Richardson  t\  State, 
55  End. 381;  Cutler  v.  State,  62  Ind.  39S; 
Martin  v.  Smith,    57    Ind.  62;   Bennett 


BRIEFS   AND   ARGUMENTS. 


375 


ruling  as  erroneous,  without  discussion,  is  not  sufficient  to  en- 
title counsel  to  successfully  insist  that  he  has  made  a  point,  but 
a  discussion,  even  though  it  be  not  sufficient  to  secure  assent, 
will  save  the  counsel  from  the  reproach  of  having  waived  a 
point  by  a  failure  to  do  his  duty.1  Where  a  ruling  is  asserted 
to  be  erroneous  the  party  making  the  assertion  must  overcome 
the  presumption  that  it  was  correct,  and  this  he  can  not  do 
otherwise  than  by  specifying  the  particular  error  which  inval- 
idates the  ruling.2  This  rule  is  required  for  the  assistance  and 
enlightenment  of  the  court.  Common  fairness  to  opposing 
counsel  likewise  demands  it,  for  thev  have  a  right  to  know  just 
what  particular  point  thev  are  to  meet.  It  is  also  required  by 
the  analogous  cases  which  declare  that  objections  wherever 
presented  must  be  specific. 

§  446.  Stating  Propositions  of  Law — A  proposition  of  law  clearly 
and  strongly  stated  is  often  better  than  a  prolix  argument.  Ex- 
hibited in  a  condensed  form  and  separated  from  a  mass  a  prop- 
osition is  quickly  seized,  and  it  penetrates  deeply,  but  concealed 
in  a  confused  mass  it  is  likely  to  he  overlooked  or  its  force 
dimly  perceived.3     "The  propositions  of  law  and  fact  on  which 


v.  State,  22  Ind.  147;  Lackey  v.  Hern- 
by,  9  Ind.  536;  Crisman  v.  Masters,  23 
Ind.  319;  Heady  v.  Wood,  6  Ind.  S2. 
The  decision  in  Coon  v.  Welborn,  83 
Ind.  230,  is  certainly  out  of  line  with 
our  own  cases  and  with  the  cases  in 
other  courts.  They  are  too  numerous 
for  citation.    It  is  unsound  on  principle. 

1  This  is  important  as  affecting  peti- 
tions for  rehearing,  as  will  be  hereafter 
indicated. 

2  In  Williams  v.  Nesbit,  65  Ind.  171, 
counsel  stated  an  objection  in  general 
terms  and  referred  to  a  case,  but  this 
was  held  not  sufficient  to  present  the 
question,  the  court  saying,  among  other 
things,  that  "This  is  the  only  reference 
he  makes  to  the  judgment  or  execution 
in  his  brief.  In  this  reference  to  the 
judgment  no  objection  to  its  validity  is 
pointed  out,  and  hence  no  question  upon 
its  validity  is   raised  here."     See.  also. 


Harrison  v.  Hedges,  60  Ind.  266;  Pow- 
ers v.  State,  87  Ind.  144;  Wright  v. 
McLarinan,  92  Ind.  103;  Cooper  v. 
Robertson,  S7  Ind.  222;  Collins  v.  Mc- 
Duffie.  89  Ind.  562;  Mills  v.  Winter,  94 
Ind.  329.  "It  is  the  duty  of  counsel 
to  do  more  than  make  an  assertion; 
they  should  state  reasons  for  their  prop- 
ositions and,  if  necessary,  cite  authori- 
ties in  their  support."  Liggett  v.  Fire- 
stone, 102  Ind.  514. 

3  "  The  aim  should  be  to  concentrate 
and  rise  above  the  crude  points  that 
were  mooted  in  the  first  stages  of  the 
controversy  -md  bring  all  the  arts  of 
brevity,  conciseness  and  severe  logic, 
with  pith  and  point,  to  bear  on  the  few 
real  questions  which  are  worth  the  at- 
tention of  a  court  which  exists  only  to 
settle  real  doubts."  Austin  Abbott  in 
the  New  York  Dailv  Register. 


376  APPELLATE  PROCEDURE. 

counsel  rely,"  said  Justice  Miller,  of  the  Supreme  Court  of  the 
United  States,  "must  be  stated  so  as  to  show  clearly  their  rela- 
tion to  each  other,  and  be  so  plainly  expressed  as  to  present  a 
chart  of  the  road  to  be  traveled."  But  it  is  not  always  sufficient 
to  do  no  more  than  state  bare  propositions  of  law,  indeed,  it  is 
seldom  sufficient  to  simply  state  naked  legal  propositions,  for 
propositions  are  by  no  means  always  self-evident.  It  is  often  nec- 
try  to  support  propositions  by  arguments,  and  sometimes  to 
fortify  them  by  illustrations  and  by  reference  to  authorities. 
Clear,  concise  propositions  serve  as  heads  for  arguments,  but 
they  are  not  always  in  themselves  arguments. 

§  447.  Citing  Authorities — Decisions  add  weight  to  a  written 
argument,1  not  always  simply  because  they  constitute  prece- 
dents, but  often  because  the  court  which  makes  the  decision  is 
so  highly  regarded  as  to  carry  force  in  its  utterances  and  often 
because  the  reasoning  of  the  opinion  carries  conviction.  It  is 
not  the  number  of  cases  so  much  as  the  character  of  cases,  that 
is  important.  The  practice  of  collecting  cases  from  digests 
without  close  examination  has  more  than  once  been  censured.2 
Care  in  selecting  and  accuracy  in  citing  authorities  are  cardinal 
virtues.  The  correct  practice  is  to  give  the  names  of  the  par- 
ties and  the  volume  and  page  of  the  reports  where  the  case  will 
be  found.3     It  is  not  good  practice,  as  writers  and  judges  have 

1  "  To  cite  cases,"  wrote  Sir  Edward  torney  to  find  out  that  a  court  does  not 
Coke,  "standeth  well  with  the  gravitie  want  a  digest  piecemeal;  but  a  mistake 
of  our  lawyers."      Work  of  the  Advo-     that  is  only  too  common  is  the  citing 

533.  of  a  long  list  of  authorities  taken  from 

2  "The  most  common  defect  I  have     all    jurisdictions,    and    some   of  which 

ved  in  the  argument  of  causes,"  have  not,  apparently,  as  far  as  human 
says  Judge  Dillon,  "  next  to  faulty  state-  ingenuity  can  ascertain,  the  slightest 
ments  is  the  misuse  of  reported  cases,  relevancy  to  the  particular  case."  On 
No  lawyer  is  justified  in  citing  a  case  making  a  Brief  on  Appeal,  New  York 
in  his  brief  which  he  has  not  carefully  Law  Journal.  Justice  Miller,  in  his 
read  and  studied."  i  Columbia  Jurist,  address  before  the  Pennsylvania  Law 
125,  14  Am.  Law.  Rec.  53,  56.  "In  School,  in  Philadelphia,  makes  some  ex- 
citing cases,"  says  an  author  already  cellent  suggestions  as  to  the  weight  and 
quoted,  "you  will  not,  of  course,  inflict  value  of  judicial  decisions.  See  The 
on  the  court  undigested  and  indigesti-  Advocate,  January  31,  1889. 

tragraphs  from  the  various  digests,  3  Rule  XXVI   provides  that  counsel 

half  of  which  may  turn  out  on  close  in-  "  shall  give  the  titles  of  cases  cited,  to- 

spection  to  have  been  founded  on  obiter  gether    with   the  volume  and  pages  of 

dicta.     It  does  not  take  long  for  an  at-  the  reports  where  they  are  found." 


BRIEFS   AND   ARGUMENTS. 


377 


often  said,  to  refer  to  the  page  and  volume  of  the  reports  with- 
out giving  the  names  of  the  parties.1  There  are  manifest  rea- 
sons for  this  rule  ;  one  is  that  the  court  often  recalls  without 
examination  what  is  decided  in  a  case,  and  all  that  is  required 
is  the  naming  of  the  case  ;  another  reason  is  that  accuracy  is 
increased  and  mistakes  avoided  by  giving  names,  and  still  an- 
other reason  is  that  if  names  are  given  the  court  may,  by  ex- 
amining the  table  of  cases,  find  the  case  cited,  although  the 
figures  indicating  the  volume  and  page  may  be  wrong.  When 
text  books  are  cited  the  edition,  if  there  be  more  than  one  edi- 
tion, should  always  be  given.  The  primary  principle  of  selec- 
tion is  to  secure  cases  decided  by  the  court  to  which  the  argu- 
ment is  addressed,  since  only  such  cases  can,  with  strict  accu- 
racy, be  said  to  be  authority.2    But  cases  decided  by  other  courts 


1  Judge  Buskirk's  suggestions  upon 
this  point  are  valuable.  He  says:  '"As 
a  general  rule,  counsel  should  not  cite 
an  authority  without  examination;  but 
where  the  attorney  has  not  an  oppor- 
tunity of  examining  an  authority  which 
is  cited  in  a  text-book  or  digest  and 
seems  to  be  in  point,  he  may  cite  it, 
with  a  statement  that  he  has  not  exam- 
ined it.  In  citing  an  adjudged  case, 
the  names  of  the  parties,  the  volume 
and  page  should  be  given,  for,  where 
the  names  of  the  parties  are  given,  the 
case  can  be  found,  although  there  is  a 
mistake  in  the  volume  and  page."  Judge 
Dillon  says:  "A  citation  of  a  case  un- 
der a  given  proposition  ought,  unless 
distinctly  otherwise  stated,  to  be  equiv- 
alent to  an  implied  professional  certifi- 
cate that,  in  the  writer's  judgment,  the 
case  cited  is  an  express  authority  in 
support  of  such  proposition."  i  Colum- 
bia Jurist,  125,  14  Am.  Law  Rec.  53,  56. 
The  reports  contain  many  cases  in 
which  counsel  have  supplied  their  ad- 
versaries with  authorities.  It  has  often 
Happened  that  counsel  have  cited  cases 
which  so  far  from  being  of  service  to 
them,  have  given  support  to  their  op- 
ponents. 

2  Ram  on  Legal  Judgments,  Chapter 


XII  to  XIX;  Bishop's  First  Book  of 
the  Law,  Book  IV,  Chapter  XXIII; 
Heard's  Criminal  PL,  Chapter  I;  The 
Wrork  of  the  Advocate,  52.  "  Devote 
yourself  above  all  to  find  authorities  in 
your  own  State,"  says  Mr.  Abbott, 
"for  these  are  the  ones  which  are  con- 
trolling, and  it  must  be  a  very  new  and 
strange  question  upon  which  you  can 
not  find  some  light.  *  *  *  *  And  even 
in  your  own  State  always,  before  citing 
an  authority  of  importance,  trace  it 
down  to  date,  for  it  may  have  been  so 
'distinguished'  as  to  have  lost  all  vital- 
ity of  meaning."  Justice  Miller  says: 
"  But  a  far  more  important  element  in 
determining  the  weight  to  be  given  a 
case  is  the  fact  that  it  has  been  judi- 
cially decided  after  full  argument  on 
both  sides  of  the  case;  and  if  the  report 
shows  that  counsel  directed  attention 
of  the  court  to  the  main  point  to  be  de- 
cided, and  gave  the  aid  which  they 
should  always  give,  arising  from  their 
own  careful  examination  of  the  matter, 
to  enable  the  court  to  decide  correctly, 
it  is  then  a  case  decided  after  full  argu- 
ment on  both  sides  and  necessarily  car- 
ries the  weight  which  attaches  to  the 
care  with  which  the  case  has  been  ex- 
amined." 


378  APPELLATE   PROCEDURE. 

are  important  and  are  always  to  be  cited  unless  the  question  is 
set  at  rest  by  the  decisions  of  the  court  of  the  State  in  which  the 
case  arises.  It  seldom  happens  that  two  cases  are  precisely 
alike.  In  many  cases  a  conclusion  is  reached  by  a  process  of 
analogical  reasoning",  and  in  order  to  arrive  at  a  conclusion  re- 
sembling cases  are  studied  and  the  principles  extracted  from 
them  and  applied  to  the  particular  case. 

§  448.  Waiver  of  Preliminary  Motions  by  Filing  Brief — An  ap- 
pellee who  voluntarily  tiles  a  brief  upon  the  merits  of  the  ap- 
peal, that  is,  contests  the  points  made  by  the  appellant  either 
bv  asserting  that  they  are  not  properly  presented  by  the  record 
or  by  insisting  that  the  rulings  challenged  are  right,  in  effect 
enters  an  appearance  and  thus  waives  some  of  the  objections 
that  might  be  made  available  upon  a  preliminary  motion.1  A 
party  who  files  a  brief  waives  all  questions  as  to  notice  which 
affect  him,  and  he  waives  questions  as  to  the  formality  or  regu- 
larity of  the  assignment  of  errors.  But,  as  elsewhere  shown. - 
he  does  not,  by  filing  a  brief,  waive  the  right  to  challenge  the 
specifications  of  error,  as,  for  instance,  the  right  to  insist  that 
a  cause  for  a  new  trial  not  assigned  in  the  motion  below  is  not 
available  on  appeal. 

§  449.   Time  within  which  the  Appellant's  Brief  must  be  Filed — 

The  appellant  must  file  a  full  brief  within  sixty  days  after  the 
cause  is  submitted.3  If  the  brief  is  not  filed  within  that  time  it 
is  the  duty  of  the  clerk  to  enter  an  order  dismissing  the  appeal, 
unless  the  appellee  requests  that  a  decision  be  given  in  the 
case.     The  rule  requiring  the  appellant  to  file  a  brief  within 

1  Schmidt  v.  Wright,  SS  Ind.  56.     In  Watts  v.  State.  33  Ind.  237;    Bosley  v. 

the   case  cited   it    was   said:     "By  un-  Farquar,  2  Blackf.  61;     Glenn   :\  State, 

conditionally  filing  their  brief  on   the  46  End.  368;    Cox  v.  Pruitt,  25  Ind.  90; 

27th  day  of  January.  1882,  they  entered  Rose    V.   Allison.    41     Ind.    270;     Kara- 

rieral    appearance  and  waived    all  bieskey  v.  State.  26  Ind.  225;    Frei 

objections  on  account  of  notice."      See  Haworth,    to,   Ind.    404;     Templetoi 

v.  Doerman,  112  Ind.  390.     That  Hunter,  to  Ind.  380;  Rich  v.  Starbuck, 

neral   appearance  waives    prelimi-  45  Ind.  310;    New   Albany,  etc.,  Co.  v. 

nary  motions   is  well   settled.     Malum  Combs,  13  Ind.  (.90. 

v.  Malum,  19  Ind.  y..\\   Miller  v.  Hays,  s  Pleadings  of  the  Appellee,  Chapter 

20    Ind.    1.5 1 ;     Feaster    i>.  Woodfill,  23  XIX. 

Ind.  1                  n  :.  Buzan,  24  Ind.  194;  3  Rule  XX. • 


BRIEFS  AND   ARGUMENTS.  379 

sixty  days  has  been  enforced  in  many  cases1 — very  many  more 
than  appears  from  the  reports.  Filing  a  brief  after  the  expira- 
tion of  the  time  designated  will  not  prevent  a  dismissal.2  If 
the  last  day  falls  on  Sunday  a  filing  on  the  succeeding  Monday 
will  be  in  time.3 

§  450.  Brief  on  Cross-Errors — Time  of  filing — The  appellee  is 
allowed  sixty  days  after  submission  in  which  to  assign  cross- 
errors4  and  the  rule  requires  him  to  file  a  brief  on  his  assign- 
ment within  sixty  days  after  the  submission  of  the  cause.5  But 
the  appellee  may  upon  due  application,  proper  notice  and  suf- 
ficient cause,'1  obtain  leave  to  assign  cross-errors  after  the  ex- 
piration of  sixty  days,  so  that  the  rule  limiting  the  time  to  file 
a  brief  on  cross-errors  to  sixty  days  can  not  apply  to  all  cases. 
It  would  be  in  accordance  with  the  doctrine  which  prevails  in 
analogous  cases  to  require  an  appellee  to  accompany  an  appli- 
cation made  after  the  expiration  of  the  time  designated  with  a 
brief,  and  this  has  been  required  in  some  instances,  but  it  can 
hardly  be  said  that  there  is  any  established  rule  upon  the  sub- 
ject. Generally,  however,  a  party  who  asks  leave  to  do  an 
act  after  the  time  limited  has  expired  in  which  he  can  do  the 
act  as  a  matter  of  right  must  do  all  that  he  reasonably 
can  to  prevent  further  delay,  and  we  can  see  no  reason  why 
this  doctrine  should  not  apply  to  an  appellee  who  asks  leave  to 
assign  cross-errors  after  the  expiration  of  sixty  days  from  the 
date  of  the  submission. 

§  451.   Appellee's  Brief  on  the  Appellant's  Assignment  of  Errors — 

The  rule  provides  that  the  appellee  shall  have  ninety  days  af- 

1  Schwann  v.  State,  8i  Ind.  247;  Mur-  pellee's    motion.      He    has    a    right   to 

rav  v,  Williamson,  79  Ind.  287;   Schul-  have  the  appeal  dismissed." 

tiesf.  Keiser,  95  Ind.  159;  Roy  v.  State,  3  Hogue  v.  McClintock,  76  Ind.  205. 

58  Ind.  378;  Indianapolis,  etc.,   Co.  v.  *  Rule  IV. 

Ferguson,  58  Ind.  445;     Indianaapolis,  5  Rule   XX.     This    rule    after    fixing 

etc.,    Co.    v.    Kostanzer,   58   Ind.    446;  the   time    within   which    the    appellant 

State  v.  Lieben,  57  Ind.  106.  shall  file  a  briefprovides  that,  "  If  cross- 

*  Stephens  v.  Stephens,  51   Ind.  542;  errors  are  assigned,  the  party  assigning 

Sagasser   v.  Wynn,  88   Ind.   226.      In  them  shall  have  the  same  length  of  time 

Murray  v.  Williamson,  79  Ind.  2S7,  the  to  file  a  brief  thereon,  and  if  a  brief  is 

court  said:     "The  fact  that  a  brief  has  not  filed  within  that  time  the  cross-er- 

since  been  filed  is  no  answer  to  the  ap-  rors  shall  be  struck  out." 

6  Rule  IV. 


380  APPELLA  rE   PROCEDURE. 

ter  the  submission  in  which  to  file  a  brief  upon  the  questions 
presented  by  the  appellant.1  If  the  brief  is  not  filed  within 
that  time  the  court  may,  if  it  chooses,  regard  a  brief  as  waived. 
But  the  rule  is  seldom  strictly  enforced  against  the  appellee. 
Briefs  riled  within  a  reasonable  time  before  the  case  is  taken 
under  consideration  by  the  court  are  generally  accepted  and 
:d  upon  by  the  court.  The  appellant  is,  however,  entitled 
to  a  reasonable  time  to  examine  and  answer  the  appellee's  brief.2 

§  452.   Extension  of  the  Time  for  filing  Briefs — It  is,  of  course, 

within  the  power  of  the  court  to  extend  the  time  for  filing  briefs. 
An  extension  of  time  is,  however,  not  granted  as  a  matter  of 
course,  or  as  a  matter  of  right.  Counsel  who  desire  an  exten- 
sion of  time  should  make  written  application  to  the  court,  or  to 
one  of  the  judges,  prior  to  the  expiration  of  the  time  limited. 
While  the  matter  is  one  of  a  discretionary  character  the  usual 
practice  has  been  to  require  a  sufficient  excuse  to  be  shown  for 
not  filing  the  brief  in  due  time,  and  if  such  an  excuse  is  not 
shown  to  deny  the  application. 

§  453.  Oral  Arguments — Our  great  lawyers  and  judges  have 
sadly  erred  if  it  be  not  true  that  oral  arguments  are  much  more 
effective  than  written  ones,  for  they  have  declared,  whenever 
they  have  spoken  upon  the  subject,  that  an  oral  address  is  much 
more  powerful  than  a  written  one.  There  is,  indeed,  no  di- 
versity of  opinion  upon  this  subject,  and  we  venture  to  say  that 
a  court  that  discourages  oral  arguments  departs  from  the  true 
course.3  But  in  commending  oral  arguments  judges  and  writ- 
ers have  not  been  sparing  in  their  censure  of  long  and  prolix- 
addresses  to  the  court.'     It  requires  ability  and  labor  to  make 

1  Rule  XXII.  truth    there    is    no    substitute    for   oral 

2  Rule    XXV.      This    rule    requires  argument."     tg  Am.  Law  Review,   19. 
counsel  to  interchange  briefs.     It  also  See,  also,  authorities  collected  in  The 
requires  copies  of  additional  or  supple-  Work  of  the  Advocate,  506,  514. 
nuntal  briefs  to  be  furnished  opposite         *  Profession  D'Avocat,  Vol.  I,  p.  510; 
counsel.  j  I  Albany  Law  Journal,  40;   22  Albany 

3  Judge  Dillon  says:    "As  a  means  of  Law  Journal,  439;    Judge   Samuel    F. 
enabling  the  court   to   understand  the  Miller's  Address  to  the  Iowa  Bar  As- 

case  brought  thither  for  its  judg-     sociation;     Henry's    Reminiscences   of 
ment,  as  a  means  of  eliciting  the  very      Daniel  Webster. 


BRIEFS  AND   ARGUMENTS.  381 

a  short,  sharp  and  incisive  forensic  argument,  but  the  value  of 
brevity  far  outweighs  the  expense  of  the  time,  talent  and  labor 
expended  in  condensing  and  crystallizing  an  argument.  It  is 
a  mistake,  often  made,  for  too  many  counsel  to  argue  one  side 
of  a  cause  ; '  division  in  such  cases,  as  was  long  since  suggested 
by  the  Supreme  Court  of  the  United  States  (and  against  which 
one  of  its  rules  is  directed),  is  very  likely  to  impair  and  weaken 
the  effect  of  oral  arguments  addressed  to  the  court.  It  is  not 
to  be  supposed  that  a  written  argument  is  not  needed  where  the 
case  is  orally  argued  ; 2  on  the  contrary,  a  brief  is  always  of 
importance  ;  so  plainly  is  this  true,  that  the  assertion  carries  its 
own  support. 

§  454.  Application  for  Oral  Argument — Counsel  who  desire  an 
oral  argument  are  entitled  to  it  upon  filing  a  written  application 
requesting  that  the  cause  be  set  down  for  argument,  and  by 
complying  with  the  rules  upon  the  subject.3  Notice  of  the 
time  fixed  for  the  argument  must  be  given  and  a  statement  of 
the  propositions  which  counsel  propose  to  argue  mailed  or  de- 
livered to  counsel  representing  adverse  parties. 

§  455.  Limitation  of  Oral  Arguments — The  limitation  is  two 
hours,  the  time  to  be  equally  divided  between  opposing  coun- 
sel. If  longer  time  is  required  it  must  be  asked  and  obtained 
in  advance  of  the  argument.4  It  is  necessary  that  reasonable 
cause  be  shown  in  order  to  secure  an  extension  of  time  bevond 
that  fixed  by  the  rule  of  court,  for  an  extension  is  not  granted 

1  "The  system  by  which  the  one  who  that:  "The  failure  to  notice  or  discuss 
argues  the  cause  and  the  one  who  pre-  in  oral  argument  points  properly  made 
pares  the  brief  are  different  persons,  in  the  briefs  shall  not  be  deemed  a 
tends  very  much  to  multiply  unneces-  waiver  of  such  points,  but  they  will  be 
sarv  points,  and  swell  the  bulk  of  the  fully  considered  in  determining  the 
reading  matter   which   is  put  between  cause." 

the  judge  and  the  decision  of  the  case."  3  Rule  XXVII. 

32  Albany  Law  Journal,  41.  4  Rule    XXVIII.     The  rules  do   not 

2  As  we  have  seen,  points  not  properly  provide  that  the  time  shall  be  two  hours 
made  in  the  brief  are  waived,  but  if  in  every  case,  but  they  fix  that  as  the 
there  duly  made,  the  failure  to  insist  maximum  limit,  leaving  it  to  the  court, 
upon  them  in  the  oral  argument  is  not  whenever  it  deems  proper,  to  restrict 
a  waiver.     Rule   XXVI    explicitly  re-  the  time.     Rule  XVII 

quires   briefs.      Rule    XXIX    provides 


382  APPELLATE  PROCEDURE. 

as  a  matter  of  course,  nor  can  counsel  agree  upon  the  time  so 
as  to  break  the  force  of  the  rule.  The  rule  prevails  in  all  cases 
where  the  court  is  not  put  in  possession  of  facts  clearly  showing 
that  the  time  fixed  by  the  rule  is  not  adequate.  Experience 
has  demonstrated  the  fact  that  the  time  fixed  by  the  rule  is 
amply  sufficient  in  the  great  majority  of  cases.  It  is  not  to  be 
forgotten  that  the  oral  argument  is,  in  all  cases  where  counsel 
have  fully  discharged  their  duty,  supplemented  and  aided  by  a 
written  brief.  This  brief  is  before  the  court  and  to  it  reference 
is  made  in  consultation  and  in  submitting  the  opinion  before  it 
is  accepted  as  that  of  the  court.  As  the  brief  is  at  hand  there 
is  little  necesssity  for  prolix  discussion  and  none  for  the  repeti- 
tion and  reiteration  of  propositions,  nor  is  there  any  reason  for 
reading  at  length  from  text-books  or  decisions,  since  the  brief 
should  supply  needed  quotations  and  make  proper  citations.1 

§  456.  Statement  of  Propositions  for  Argument — The  proposi- 
tions which  counsel  propose  to  argue  are  required  to  be  stated 
in  writing ;  each  proposition  is  to  be  appropriately  numbered, 
and  under  each  proposition  the  authorities  relied  upon  as  sup- 
porting it  must  be  arrayed.2  It  is  only  the  points  or  propositions 
that  can  properly  be  stated  ;  an  extended  discussion  is  forbid- 
den.3 The  points  clearly  stated,  logically  arranged  and  exhib- 
ited in  an  orderly  form   greatly  aid  the  court.     Counsel  who 

1  "In  citing  cases  which  you  think  are  is    only    apparent."      The     Advocate, 

controlling  of  the  question  at  issue,  or  January    3,    1889.     But    while   there    is 

which,  at  least,  fairly  sustain  your  view,  much  of  truth   in  what  is  said  by  the 

give    the    principle     fully    and    clearly,  writer   quoted,   still,    it   is   to   be  taken 

quoting  in  extenso,  when  necessary,  the  with  some  qualification.     It   is  not  al- 

parts  of  the  opinion  which  are  exactly  ways  necessary  toquote  from  decisions 

in  point,  and   adding  to  those   citations  or  text -books,  since  the  simple  reference 

such    other  cases   as   sustain   the  same  to  authority   on  a  familiar  question  is 

propositions.     If  the  reasoning  of  your  often  sufficient.     Where,  however,  the 

authority  is  somewhat  mixed,  or  is  com-  question     is    intricate,    or   difficult,    or 

plicated  with  other  questions,  carefully  novel,  quotations   may,  with  profit  and 

point  out  exactly  how    it    is    applicable  propriety,  be  freely  made. 

to  sustain  your   position,   and   if  there  2  Rule    XXIX.     "Counsel  shall   not 

are  any  parts  of  the  cases  cited  appar-  read   from  written  or   printed  briefs  in 

ently  in  conflict    with  your   own  case,  discussing    the    propositions     stated." 

carefully  distinguish  it  or  make  clear  to  s  Ibid. 
ourt,  it   you   can,  that   the  conflict 


BRIEFS   AND  ARGUMENTS.  383 

can  not  prepare  such  a  statement,  it  is  fair  to  infer,  are  not 
sufficiently  acquainted  with  the  case  to  assume  to  instruct  the 
court  or  to  impart  information.  Either  this  must  be  the  infer- 
ence or  else  something  even  less  creditable  to  counsel  must  be 
inferred.  All  the  points  that  counsel  desire  to  orally  argue 
should  be  embodied  in  the  written  statement,  since  the  argu- 
ment will  be  strictly  confined  to  the  points  stated.  The  writ- 
ten statement  "  must,"  as  the  rule  provides,  "be  mailed  or  de- 
livered to  opposing  counsel  at  least  ten  days  before  the  time 
appointed  for  the  argument,  and  a  copy  shall  be  filed  with  the 
clerk  before  the  argument  for  the  use  of  the  court."1  The 
statement  of  the  points  is  an  important  instrument,  and,  if  well 
prepared,  is  of  great  assistance  to  the  court,  in  the  examination 
of  the  case.  It  does  not  supply  the  place  of  a  brief,  but  it  is  a 
valuable  auxiliary.  The  brief  is  always  essential  and  an  oral 
argument  does  not  dispense  with  the  necessity  of  filing  it. 
Points  made  in  the  brief  are  not  waived  by  a  failure  to  discuss 
them  in  the  oral  argument.  Many  of  the  courts  deal  very  se- 
verely with  counsel  who  fail  to  present  briefs  and  points  as  the 
rules  require.  Some  of  the  courts  dismiss  the  appeals  where 
the  appellant  is  in  default,  and  where  the  appellee  is  the  delin- 
quent reverse  the  judgment.2  There  is  good  reason  for  strict- 
ness. It  is  due  to  the  court  that  the  case  should  be  presented 
as  the  rules  of  the  court  require,  and  it  is  due  to  clients  in  causes 
important  enough  to  demand  the  time  and  study  of  the  courts 
that  there  should  be  a  full  and  careful  argument. 

§  457.  Interchange  of  Points  for  Argument — The  rule  expressly 
requires  that  counsel  shall  interchange  the  written  propositions 
required  for  oral  argument.  If  counsel,  duly  notified  by  those 
who  apply  for  oral  argument,  desire  to  be  heard,  they  must 
make  a  written  statement  of  the  propositions  which  they  desire 
to  discuss  and  mail  or  deliver  it  to   opposing  counsel.3     Under 

1  Rule  XXIX.  2i  Pac.   Rep.   971;    Owen  v.  Going,  13 

2  Purdy  v.  Rahl  (Cal.),  21  Pac.  Rep.  Col.  290,  22  Pac.  Rep.  768;  People  v. 
971;  Parson  v.  Haskell,  30  111.  App.  Bachman  (Cal.),  23  Pac.  Rep.  1090; 
444;  Green  v.  Smith,  21  III.  App.  198.  Lancaster  v.  Waukegan,  etc.,  Co.,  132 
See,  generally, Steffen  t'Jefferis(Mont.),  111.  492,  24  N.  E.  Rep.  629. 

22  Pac.  Rep.  152;  Hanson  v.Voll  (Cal.),         3  Rule  XXIX. 


384  APPELLATE  PROCEDURE. 

the  propositions  must  be  cited  the  authorities  upon  which  coun- 
sel rely.  The  practice  has  been  in  cases  where  counsel  on  one 
side  have  failed  to  make  and  file  the  written  propositions  re- 
quired by  the  rules,  to  hear  the  counsel  not  in  default  and  to 
refuse  to  hear  the  delinquent  counsel.  This  is,  certainh',  as 
liberal  a  practice  as  can  be  pursued,  and  as  compared  with  the 
practice  of  many  of  the  courts  is  unusally  liberal. 


CHAPTER  XXII. 

THE  ORDER  OF  DOCKETING  AND  HEARING  APPEALS. 

4  458.    Docketing  appeals.  §  464.   Cases  can  not  be  advanced  by 

459.  Exceptions  to  the  general  rule.  agreement. 

460.  Filing  of  the  transcript  is  gen-         465.   The    application    for   advance- 

erally    essential    to    jurisdic-  ment. 

tion.  466.  What  must  precede  application. 

461.  Order  of  hearing.  467.  Notice  of  the  application. 

462.  Authority  of  the  court  to  change  468.  Hearing  the  motion  to  advance. 

the  order  of  hearing.  469.    Questions  for  decision  on  a  mo- 

463.  Advancement  of  cases.  tion  to  advance. 

§  458.  Docketing  Appeals — Causes  are  docketed  in  the  order 
in  which  they  are  tiled  in  the  office  of  the  clerk  of  the  Supreme 
Court.1  As  the  assignment  of  errors  is  the  appellant's  com- 
plaint and  is  essential  to  complete  jurisdiction  it  should  accom- 
pany the  transcript.  Another  reason  why  the  assignment  of 
errors  should  accompany  the  transcript  is  this :  Process  issues 
according  to  the  assignment  of  errors.2  The  general  rule  is 
that  which  we  have  stated,  and  to  this  general  rule  the  practice 
has  long  conformed. 

§  459.  Exceptions  to  the  General  Rule — There  are  exceptions  to 
the  general  rule  that  the  assignment  of  errors  must  accompany 
the  transcript,  although  they  are  rare.  It  may  happen,  to  give 
an  illustrative  instance,  that  it  is  necessary  to  file  the  transcript 
and  secure  an  order  to  perfect  the  record  before  an  assignment 
of  errors  can  be  intelligently  or  properly  prepared.  In  such  a 
case  the  transcript  should  be  filed,  the  proper  motion  or  petition 
be  presented,  and  due  notice  issued.  When  this  is  done  the 
appellate  tribunal  has  such  jurisdiction,  although  the  jurisdic- 
tion may  not  be  complete,  as  authorizes  it  to  proceed  in  the 
case.     But,  as  a  general  rule,  the  transcript  must  be  filed,  to- 

1  R.  S.  1881,  653.  Errors,"  ante  Chapter  XVI.    See,  also, 

2  Rule  VI.     See  "The  Assignment  of    "  Process,"  ante  Chapter  XIII. 

25  (385) 


APPELLATE  PROCEDURE. 


gether  with  the  proper  motion  or  petition.  This  is  so,  because, 
as  a  general  rule,  the  appellate  tribunal  can  not  exercise  orig- 
inal jurisdiction,  and  until  the  transcript  is  filed  there  is  nothing 
to  call  into  exercise  appellate  authority.  Until  then  there  is  no 
case  to  review.  There  are,  doubtless,  other  cases  than  that 
adduced  as  an  illustration  where  action  in  the  appellate  tribunal 
may  be  taken  without  first  filing  the  assignment  of  errors,  but 
the  illustration  we  have  given  is  sufficient  for  our  present  pur- 
pose. There  are  cases  where  the  appellate  tribunal  exercises 
original  jurisdiction,  as,  for  instance,  in  determining  its  own 
duties  and  protecting  its  own  records,  but  ordinarily  it  exercises 
only  appellate  authority.  Connected  with  this  jurisdiction  are 
incidental  powers,  but  they  are  seldom  anything  more  than 
auxiliary  ones  exercised  in  aid  of  its  principal  jurisdiction. 

§  460.  Filing  of  the  Transcript  is  generally  essential  to  Jurisdic- 
tion— It  is  quite  clear  that  ordinarily  a  cause  can  not  be  dock- 
eted on  appeal  until  the  transcript  is  filed.  The  transcript  is, 
in  the  very  great  majority  of  cases,  the  foundation  of  the  au- 
thority to  take  cognizance  of  the  appeal.  If,  by  wrong,  it  is 
withheld,  there  is  a  remedy — but  we  need  do  no  more  at  pres- 
ent than  speak  of  the  general  rule.  As  the  transcript  is,  in 
general,  the  foundation  of  the  proceedings,  it  must  be  filed, 
even  though  it  be  imperfect.  Filing  the  transcript  is  nearly 
always  the  initial  step.  If  imperfect  it  can  be  corrected  after 
filing  and  docketing,  but  until  it  is  before  the  court  there  is  or- 
dinarily no  appeal,  and  there  is  no  ground  justifying  or  requir- 
ing the  exercise  of  either  the  principal  or  auxiliary  appellate 
jurisdiction.  The  party  who  first  files  his  transcript  and  then 
asks  for  auxiliary  aid  will  seldom  go  wrong.  It  may  be  safely 
assumed  that  until  the  transcript  is  filed  there  is  no  appeal  to 
docket,  and  if  no  appeal  to  docket,  none  to  try. 

§  461.  Order  of  Hearing — Causes  are  heard  in  the  order  in 
which  they  are  docketed  (if  correctly  entered),  unless  the  court 
otherwise  directs.1  As  the  law  was  prior  to  1885,  appeals  stood 
for  trial,  in  the  order  in  which  they  were  docketed,  at  the  first 

1  R.  S.  1881,  §  653. 


DOCKETING  AND   HEARING  APPEALS.  387 

term  after  filing  the  transcript  in  cases  where  the  appeal  was 
duly  perfected  as  a  term  appeal,  and  in  cases  of  appeals  upon 
notice,  at  the  first  term  after  personal  notice  had  been  served 
ten  days,  or  notice  by  publication  had  been  given  for  thirty 
days.1  As  there  were  but  two  terms  in  each  year,  May  and 
November,2  dela}^  was  unavoidable.  The  act  of  1885  wrought 
an  important  change,  and  under  that  act  appeals  are  submitted 
thirty  days  after  due  notice  irrespective  of  the  beginning  of  the 
terms  of  court.3  It  is  probably  true  that  circumstances  may 
change  the  order  of  hearing  without  special  direction  of  the 
court,  but  the  general  rule  is  that  prescribed  by  statute.  Either 
this  must  be  true  or  it  must  be  true  that  the  statute  is  nugatory. 
This  can  not  be  justly  affirmed.  It  may  be  justly  affirmed, 
however,  that  a  general  rule,  whether  prescribed  by  statute  or 
not,  has  its  exceptions,  and  that  general  rules  often  yield  to 
particular  circumstances.  It  is,  at  least,  safe  to  affirm  that  the 
statute  must  be  followed  as  far  as  practically  possible.4  The 
statute  does  little  more  than  declare  what  in  fairness  and  com- 
mon justice  is  the  true  rule,  for,  all  other  things  being  equal, 
the  first  in  time  are  first  entitled  to  an  adjudication.  It  is  to  be 
remembered  that  there  is  a  marked  difference  between  hearing 
and  deciding.  A  case  may  be  taken  up  for  consideration  and 
a  decision  delayed  (as  in  fact  often  occurs),  because  of  a  differ- 
ence of  opinion  developed  on  consultation. 

§  462.  Authority  of  the  Court  to  Change  the  order  of  Hearing — 

There  can  be  no  doubt  that  the  court  has  authority,  by  virtue 
of  the  statutory  provision,  to  change  the  order  of  hearing  ap- 
peals. Probably  it  would  have  this  authority  without  the  stat- 
utory grant  contained  in  the  words,  "  unless  the  court  for  good 
cause  shown  shall  otherwise  direct."5  It  has,  at  all  events,  the 
authority,  whether  it  be  statutory  or  inherent.  The  authority 
is  plenary.     The  entire  subject  is  committed  to  the  court,  for  it 

1  R.  S.  1881,  §  652.  tory  provision  in  strong  terms.     Bus- 

1  R.  S.  1SS1,  §  1301.  kirk's  Practice,  331.    But  we  are  unable 

3  Elliott's  Supp.,  §  2S.  See  ante,  "Sub-  to  agree  with  some  of  his  statements, 

mission,"  Chapter  XX.  5  R.  S.  1881,  §  653. 
*  Judge  Buskirk  condemns  the  statu- 


388  APPELLA  I  1     PROCEDURE. 

is   for   the  court  to  determine  whether  or  not  "good  cause  is 
shown." 

§  463.  Advancement  of  Cases— It  is  quite  clear  that  the  court 
mav  rightfully  advance  the  hearing  of  a  case  when  "good 
cause  is  shown,"  but  it  is  not  so  clear  what  constitutes  good 
cause.  Every  case  advanced  displaces  others.  The  advance- 
ment of  an  appeal  is  a  preference  of  one  case  above  others. 
Naturally  and  justly  litigants  have  a  right  to  a  disposal  of  their 
cases  in  the  order  of  their  filing.  It  can  seldom  be  justly  said 
that  one  case  involving  strictly  private  interests  should  be  ad- 
vanced over  others  involving  like  interests.  There  are,  how- 
ever, a  few  cases  of  this  character  that  may  justly  be  advanced, 
but  they  are  exceedingly  rare.  Where  a  speedy  decision  will 
settle  many  cases  and  prevent  a  multiplicity  of  actions  a  prompt 
decision  is  often  desirable  and  benefits  both  the  public  and  in- 
dividuals. Possibly  there  may  be  cases  involving  elements  of 
hardship  and  possessing  peculiar  characteristics  that  should  be 
advanced  ;  such,  for  instance,  as  a  case  where  the  year  for  the 
redemption  of  land  sold  on  execution  is  nearly  at  an  end,  or,  a 
case  which  prevents  the  final  settlement  of  a  trust  involving 
large  amounts  or  important  interests,  or,  a  case  which  stands 
in  the  way  of  closing  a  decedent's  estate.  Generally,  however, 
it  is  only  cases  involving  important  public  interests  that  are 
entitled  to  advancement.  The  Supreme  Court  of  the  United 
States  enforces  this  doctrine  with  strictness.1 

§  464.  Cases  can  not  be  advanced  by  Agreement — Counsel  rep- 
resenting adverse  parties  can  not  by  agreement  procure  an  ad- 
vancement. It  is  not  enough  that  parties  or  counsel  agree  to 
advance  ;  it  must  appear,  even  where  there  is  an  agreement, 
that  there  is  sufficient  cause  for  an  advancement.     An  agree- 

1  Barry  v.  Mercein,  4  How.  (U.  S.),  holds  that  the  fact  that  the  validity  of 

United  Statesiy.  Bassett,  21  How.  an  ordinance  of  a  municipal  corpora- 

(U.    S.),  412;    Sage  V.   Iowa,  etc.,  Co.,  tion    is    involved  will    not  warrant  an 

93  U.  S.  412;   linger'.  Richmond,  etc.,  advancement.  Davenport  City  v.  Dows, 

Co.,  93  U.  S.  1;    Central  R.  R.  Co.  v.  15  Wall.  390.     See,  generally,  Miller  v. 

Bourbon  Counh ,  n6  U.  S.  538;    Ward  State,  12  Wall.  159. 
v    Maryland,  12  Wall.  163.    That  court 


DOCKETING   AND   HEARING  APPEALS.  339 

ment  has  some  weight,  but  it  is  by  no  means  sufficient  in  itself 
to  secure  an  order  advancing  a  case  for  hearing. 

§  465.  The  Application  for  Advancement — A  written  motion,  or 
petition,  is  required.  It  must  be  verified  or  supported  by  affi- 
davit. The  grounds  upon  which  an  advancement  is  asked 
should  be  specifically  and  fully  stated.1  The  court  will  not  ex- 
amine the  transcript  to  determine  whether  the  case  is  one  en- 
titled to  be  advanced  for  hearing.  The  petition  or  motion  must 
show,  and  clearly  show,  cause  for  the  advancement ;  failing  in 
this,  it  will  not  accomplish  its  object.  A  party  who  asks  that 
his  case  be  advanced  asks  an  extraordinary  order  and  hence 
it  is  incumbent  upon  him  to  present  a  strong  petition.  The 
nature  of  the  case  should  be  stated  in  general  terms  and  the 
reasons  for  an  advancement  should  be  stated  with  certainty  and 
particularity. 

§  466.  What  mnst  Precede  the  Application — The  case  must  be 
submitted  before  an  advancement  is  asked.  The  party  making 
the  application  should  precede  it  with  his  brief.  In  short,  the 
party  moving  should,  so  far  as  it  is  in  his  power,  do  all  that  is 
required  to  put  the  case  in  form  and  situation  for  a  hearing. 
The  underlying  theory  is  that  the  appeal  is  ripe  for  judgment. 

§  467.  Notice  of  the  Application  —  Written  notice  must  be 
served  upon  the  adverse  party  or  his  counsel  informing  him  of 
the  general  nature  of  the  motion,  or  petition,  and  of  the  time 
fixed  for  its  hearing.  Notice  may,  however,  be  waived  by  ex- 
press agreement,  by  joining  in  the  motion,  or  by  conduct  from 
which  a  waiver  may  be  implied.  While  parties  can  not  by  an 
agreement  secure  an  order  advancing  a  cause,  they  may  by 
agreement  waive  notice. 

§  468.  Hearing  the  Motion  to  Advance — A  motion  or  petition  to 
advance  is  heard  and  decided  upon  the  pleadings  and  affidavits 
filed  by  the  respective  parties.  Oral  evidence  is  not  heard. 
Counter-affidavits  may  be  filed.  Briefs  may  be  properly  filed, 
but  oral  arguments  are  not  heard. 

1  Call  v.  Palmer,  106  U.S.  39;  Taylor  v.  Wing,  S3  N.  Y.  527. 


390  APPELLATE   PROCED1  RE. 

§  469.   Questions  for  Decision  on  the  Motion  to  Advance — The 

questions  presented  by  a  motion  to  advance  are  such,  and  such 
only,  as  relate  to  the  right  of  the  applicant  to  a  preference. 
No  other  questions  are  involved.  It  is,  therefore,  correctly 
held  that  the  statement  that  there  is  no  merit  in  the  case  is  not 
sufficient  to  authorize  an  order  advancing  it  for  hearing.1 
Whether  or  not  there  is  merit  in  a  case  is  a  question  to  be  de- 
cided upon  the  regular  hearing.  If  courts  should  undertake 
to  examine  the  record  upon  motions  to  advance,  or  should  in- 
quire into  the  merits  of  the  case  upon  such  applications,  they 
would  not  only  go  counter  to  settled  principles,  but  they  would 
find  little  time  for  considering  cases  regularly  submitted  for 
decision  on  their  merits. 

1  Amory  v.  Amory,  91  U.  S.  356. 


CHAPTER   XXIII. 


QUESTIONS   THAT    MAY    BE    FIRST   MADE    ON    APPEAL. 


§  470 


Objections  not  presented  to  the 
trial  court  not  considered  on 
appeal — General  rule. 

Objections  to  the  complaint. 

Assailing   a   complaint   in    the 
assignment  of  errors. 
473.    What  defects  are  fatal  upon  an 
original  attack  on  appeal. 

One  good  paragraph  will  save 
the  complaint. 

Judgment  by  default — Requis- 
ites of  the  complaint. 

Answer  can  not  be  attacked  for 
the  first  time  on  appeal. 

Cross  -  complaint  or  counter- 
claim. 


471. 
472. 


474- 


475 


476. 


477 


478. 

479- 
480. 


482. 

483- 
484. 

4§5- 


4S7. 
488. 


Requisites  of  a  counter-claim. 

Reply. 

The  doctrine  applicable  to  an- 
swers and  replies. 

The  reason  of  the  rule. 

Rendering  judgment  on  the 
pleadings. 

Set-off. 

The  rule  where  a  bad  answer  is 
proved. 

Effect  of  the  rule  respecting  the 
proving  of  a  bad  answer. 

Effect  of  proving  a  bad  answer. 

Anomalous  cases. 

Criminal  cases. 


§  470.  Objections  not  presented  to  the  Trial  Court  not  considered 
on  Appeal — General  Rale — The  general  rule  is  that  objections  not 
presented  to  the  trial  court  will  receive  no  attention  on  appeal.1 


1  Missouri,  etc.,  Co.  v.  Vandeventer, 
26  Neb.  222;  State  v.  Nelson,  101  Mo. 
477;  Fowler  v .  Bowery  Savings  Bank, 
113  N.  Y.  450;  O'Neil  v.  New  York, 
etc.,  Co.,  115  N.  Y.  579;  Winters  v. 
Kansas  City,  etc.,  Co.,  99  Mo.  509;  Mc- 
Connell  v.  Osage,  80  Iowa,  293;  Wil- 
son v.  McNamee,  102  U.  S.  572;  Belk 
v.  Meagher,  104  U.  S.  279;  Wright  v. 
Mulvaney,  7S  Wis.  89,  S.  C.  9  Law.  R. 
Anno.  S07;  Adams  County  v.  Hunter, 
78  Iowa,  32S;  Clark  v.  Fredericks,  105 
U.  S.  4;  Louisville,  etc.,  Co.  v.  Fox, 
101  Ind.  416;  Falley  v.  Gribbling,  12S 
Ind.  no;  Keiser  v.  Lines,  79  Ind.  445; 
Floore  v.  Steigelmayer,  76  Ind.  479; 
City  of  Huntington   v.  Breen,  77   Ind. 


29;  Mobley  v.  State,  83  Ind.  92;  New 
Albany,  etc.,  Co.  v.  Day,  117  Ind. 
337>  Queen  Ins.  Co.  v.  The  Studebaker, 
etc.,  Co.,  117  Ind.  416;  McNutt  v.  Mc- 
Nutt,  116  Ind.  545;  Louisville,  etc.,  Co. 
v.  Hart,  119  Ind.  273;  Alexander  v. 
Humber,  S6  Ky.  565;  Brown  v.  Brown, 
29  W.  Va.  777,  S.  C.  2  S.  E.  Rep.  S08; 
Hauxhurst  v.  Ritch,  119  N.  Y.  621,  23 
N.  E.  Rep.  176;  Hardin  v.  Clark,  32  So. 
Car.  480,  11  S.  E.  Rep.  304;  Goodnow 
v.  Plumb,  67  Iowa,  661;  Patterson  v. 
Stiles,  6  Iowa,  54.  The  record  must 
affirmatively  show  that  the  question  was 
appropriately  presented  to  the  trial 
court.   Coleman  v.  Dobbins,  8  Ind.  156. 


(391) 


392  APPELLATE  PROCEDURE. 

To  this  rule  there  is  one  very  important  exception,  which  is  as 
far  reaching  as  the  rule  itself,  and  that  is  this  :  Objections  to 
the  jurisdiction  of  the  trial  court  over  the  subject  may  be  suc- 
cessfully urged  at  any  time.1  If  the  trial  court  did  not  have 
jurisdiction  of  the  subject  the  appellate  court  acquires  none.2 

^  471.  Objections  to  the  Complaint — The  general  rule  that  ob- 
jections not  presented  to  the  trial  court  are  unavailing  on  ap- 
peal applies,  with  one  important  exception,  to  pleadings.  It 
would  seem,  on  principle  and  independent  of  statute,  that 
where  a  complaint  or  declaration  wholly  fails  to  state  a  cause 
of  action  the  judgment  should  not  be  allowed  to  stand,  for  it 
is  difficult,  if  not  impossible,  to  conceive  how  a  judgment  can 
stand  where  there  is  no  actionable  wrong,  and,  surely,  there 
can  be  none  where  there  is  no  cause  of  action.  An  unsup- 
ported judgment  is  as  a  foundationless  structure.3  The  reason 
of  the  rule  does  not,  however,  exist  where  there  is  simply  a 
formal  or  unsubstantial  defect  in  the  complaint  or  declaration, 
or  a  defect  that  can  be  supplied  by  amendment,  since  such  de- 
fects may  well  be  deemed  to  be  cured  by  the  verdict. 


1  Doctor   v.   Hartman,    74    Ind.   221;  2  Withers  v.  Patterson,  27  Texas,  491, 

Smith  v.  Myers,   109  Ind.  1,9;  Robert-  495;    Robertsons.  Smith,   109  Ind.  79, 

son   v.   Smith,  109  Ind.  79;     Damp  v.  Si. 

Dane,  29  Wis.   419,  431;    Chapman   v.  3  Slacum  v.  Pomeroy,  6  Cranch,  221 ; 

Harney,  129  U.  S.  Soo;   Morris  v.  Gil-  Bank  of  United    States    v.    Smith,    11 

mer,    129  U.S.  315;    Fowler  v.   Eddy,  Wheat.  171.  In  the  caseof  Beaird  T'.The 

no  Pa.  St.   117,  S.C.i  Atl.  Rep.  7S9;  United  States. 5  Ind.  220,  it  was  held  that 

Ware  v .   Henderson,  25  So.  Car.  3S5;  in  a  case  which  originated  before  a  justice 

People  v.   Walter,  6S  X.  Y.  403,  411;  of  the  peace  the  judgment  will  be  re- 

Weeden    v.    Richmond,  9    R.    I.   128;  versed  unless  the  transcript  discloses  a 

Willins  V.  Wheeler,    17    How.  Pr.  93;  cause  of  action.     To  the  same  effect  are 

Tiffany  v.  Gilbert,  4  Barb.  320;  Fitch  the  cases  of  Bell  v.  Trotter,  4  Blackf. 

-.    Develen,    15    Barb.  47;     Hardin    v.  12;    Denby  v.  Hart,  4  Blackf.  13.     But 

Trimmer,  30  So.  Car.  391,  9  S.  E.  Rep.  if  there  is  a  complaint  sufficient  to  bar 

342;   Randleman,  etc.,  Co.  v.  Simmons,  another  action  the  judgment  will  stand 

97   N.  C.  S9,  S.  C.  1   S.  E.  Rep.  923;  where  no  attack  is  made  upon  the  com- 

Murrv   v.  Burris,  6  Dak.  170,  42  N.  W.  plaint    in    the    trial    court.      Clark    v. 

Rep.  25;  Hall  v.  Wadsworth,  30  W.Va.  Benefiel,  18  Ind.  405.     In  actions  com- 

55,  S.  C.  3  S.  E.  Rep.  29;  Keokuk,  etc.,  menced    before  a  justice  of  the  peace 

R.  Co.  r.   Donnell,  77  Iowa,  221,42  N.  this    would,    indeed,   be   the    rule    even 

W.  Rep.  17''.  where  there  was  a  direct  attack 


QUESTIONS   FIRST  MADE   ON   APPEAL. 


393 


§  472.   Assailing  a  Complaint  in  the  Assignment  of  Errors — In 

this  State  the  question  as  to  the  right  to  challenge  a  complaint 
on  appeal  for  the  first  time  is  settled  by  statute,1  and  settled,  as 
we  believe,  in  accordance  with  principle.  Doubtless  the  stat- 
ute is  open  to  abuse  and  that  result  can  only  be  prevented  by 
construing  it  so  as  to  prevent  advantage  being  taken  of  defects 
that  do  not  go  to  the  substance.  The*  statute  has  been  before 
the  court  in  many  cases  and  has  been  enforced  wherever  there 
was  no  cause  of  action.2  It  has,  indeed,  been  held,  that  a  com- 
plaint may  be  assailed  by  the  assignment  of  errors  although  a 
demurrer  to  it  may  have  been  overruled  but  no  exception  taken 
by  the  trial  court,3  and  this  holding  seems  defensible  upon  the 
ground  that  where  there  is  no  cause  of  action  there  can  be  no 
valid  judgment. 

§  473.   What  defects  are  fatal  upon  an  original  attack  on  Appeal — 

A  complaint  may  be  bad  as   against  a  demurrer  and  yet  good 


»  R.  S.  iSSi,  §  343. 

'  Bolster  v.  Catterlin,  io  Ind.  117; 
Blackledge  v.  Benedick,  12  Ind.  3S9; 
McClure  v,  McClure,  19  Ind.  185;  Kip- 
hart  v.  Brennemen,  25  Ind.  152;  To- 
ledo, etc.,  Co.  T'.  Tilton,  27  Ind.  71; 
Tomlinson  v.  Hamilton,   27   Ind.   139; 


Ludlow,  109  Ind.  199;    Louisville,  etc., 
Co.  v.  Peck,  99  Ind.  68. 

3  Nugent  v.  Laduke,  87  Ind.  482.  If, 
however,  an  exception  has  been  taken 
the  appropriate  mode  is  to  assign  the 
ruling  upon  the  demurrer,  since  a  much 
more  liberal  rule  prevails  as  to  the  ob- 


Hannum    v.  State,  3S  Ind.  32;  Livesey     jecting  party  where  the  pleading  is  dulv 
v.    Livesey,  30  Ind.  398;    Newhouse  v.     challenged    by    demurrer    in    the    trial 


Miller,  35  Ind.  463;  Heitman  v. 
Schnek,  40  Ind.  93;  Davis  v.  Perry,  41 
Ind.  305;  Mercer  v.  Patterson,  41  Ind. 
440;  Ridgeway  v.  Deariner,  42  Ind.  157; 
Packard  v.  Mendenhall,  42  Ind.  59S; 
McGoldrick  v.  Slevin,  43  Ind.  522; 
Sparks  v.  Heritage,  45  Ind.  66;  Ford  v. 
Booker,  53  Ind.  395;  Town  of  Brazil  v. 
Kress,  55  Ind.  14.  Where  a  complaint 
is  challenged  on  appeal  for  the  first 
time  the  assignment  must  be  directed 
to  the  entire  pleading.  An  assignment 
that  some  only  of  the  paragraphs  are 
bad  will  be  unavailing.  Louisville,  etc., 
Co.  v.  Corps,  124  Ind.  427,  8  Lawyers' 
Rep.  Anno.  636;  Board  v.  Tichenor 
(Ind.),    29    N.  E.  Rep.  32;   Ludlow   v. 


court.  Burkett  v.  Holman,  104  Ind.  6. 
In  Lassiter  v.  Jackman,  8S  Ind.  118,  the 
court  said:  "  If  the  appellants  had  de- 
murred to  the  complaint  of  facts  we 
may  well  suppose  that  it  would  have 
been  held  insufficient;  but  many  objec- 
tions may  be  cured  by  a  verdict,  and 
parties  may  waive  their  objections  or 
lose  all  benefit  therefrom  by  not  mak- 
ing them  in  the  proper  mode  or  at  the 
proper  time."  The  court  cited,  among 
others,  the  eases  of  Purdue  v.  Steven- 
son, 54  Ind.  161;  Wilson  v.  Kelly,  58 
Ind.  586;  Galvin  v.  Woollen,  66  Ind. 
464;  Lewis  v.  Bortsfield,  75  Ind.  390; 
Parker  v.  Clayton.  72  Ind.  307;  Beal  v. 
State.  77  Ind.  231;  Roberts  v.  Porter, 
;S  Ind. 1^0. 


394 


APPELLATE   PROCEDURE. 


against  an  assault  made  upon  it  for  the  first  time  in  the  Supreme 
Court.1  It  is,  therefore,  not  sufficient  to  entitle  a  party  to  a  re- 
versal to  prove  that  a  complaint  would  have  fallen  before  a  de- 
murrer had  it  been  attacked  in  the  court  below.  As  has  been 
suggested,  defects  which  a  verdict  will  cure  are  not  available 
where  no  demurrer  is  filed,2  and  hence  it  is  important  to  demur 
wherever  it  is  sought  to  take  advantage  of  a  defect  that  does 
not  affect  in  a  very  material  degree  the  cause  of  action.  The 
rule  that  many  defects  are  cured  by  a  verdict  prevails  as  against 
a  motion  in  arrest  of  judgment  made  in  the  trial  court,3  and 
there  is  reason  for  liberally  extending  that  rule  to  cases  where 
the  first  assault  is  made  on  the  complaint  in  the  assignment  of 

1  Hostetler  v.  State,  62   Ind.  1S3.     In         3  Eshelman   v.  Snyder,  82  Ind.  498; 

Louisville,  etc.,  Co.  v.  Hixon,  101  Ind. 
337;  Haywood  v,  Iledrick,  94  Ind.  340; 
Hedrick  v.  1).  M.  Osborne  &  Co., 99  Ind. 
143;  Puett  v.  Beard, 86  Ind.  104;  Clegg 
v.  Waterbury,  S8  Ind.  21;  Burkett  v. 
Holman,  104  Ind.  6;  Trammel  v.  Chip- 
man,  74  Ind.  474;  Pittsburgh,  etc.,  Co. 
v.  Thornburgh,  98  Ind.  201;  Felger  v. 
Etzell,  75  Ind.  417;  Beal  v.  State,  77 
Ind.  231;   Smock    v.   Harrison,   74  Ind. 


the  case  of  McGregor   v.  Hubbs,    1 2  q 

Ind.  487,488,11  was  said:  "It  is  set- 
tled law  in  this  State  that  an  assign- 
ment of  error  that  the  complaint  does 
not  state  facts  sufficient  to  constitute  a 
cause  of  action,  is  not  available  for  the 
reversal  of  the  judgment,  unless  some 
fact  esssential  to  the  existence  of  a 
cause  of  action  has  been  wholly  omitted 
from  the  complaint."  The  same  doc- 
trine  is   stated   in    somewhat    stronger     348;   Kious  v.  Day,  94  Ind.  500.    While 


terms  in  other  cases.  Lavertv v.  State, 
109  Ind.  217;  Smith  v.  Smith,  106  Ind. 
43;  Taylor  v.  Johnson,  113  Ind.  164; 
Burkhart  v.  Gladish,  123  Ind.  337; 
Hornaday  v.  Shields,  119  Ind.  201; 
Orton  v.  Tilden,  no  Ind.  131;  Kinney 
v.  Dodge,  101  Ind.  573;  Baltimore,  etc., 
Co.  v.  Kreiger,  90  Ind.  380;  Smith  v. 
Freeman,  71  Ind.  85;  Cox  v.  Albert,  7S 
Iiul.  241. 

1  Old  v.  Mohler,  122  Ind.  594;  Las- 
siter  v.  Jackman,  SS  Ind.  11S;  Owen 
School  Tp.  v.  Hay,  107  Ind. 351;  Eber- 
harl  v.  Reister,  96  Ind.47S;  Colchen  v. 
Ninde,  120  Ind.  18S;  Westfall  v.  Stark, 
27  Ind.  377;  Indianapolis,  etc.,  Co.  v. 
Petty,  30  Ind.  261;  Tomlinson -\  Ham- 
ilton. 27  Ind.  139;  Iloworth  7'.  Scarce, 
29  Ind.  278;  Gander  v.  State,  50  Ind. 
539;  Galvin  v.  Woollen,  66  Ind.  (.64; 
Smith  v.  Freeman,  71   Ind.  85. 


the  rule  that  defects  are  cured  by  a  ver- 
dict is  very  liberally  applied,  still,  it  can 
not  be  invoked  to  sustain  a  complaint 
which  omits  to  state  a  fact  indispensa- 
bly essential  to  the  cause  of  action. 
Cox  v.  Hunter,  79  Ind.  590;  Mansur 
v.  Streight,  103  Ind.  35S;  Home  Ins. 
Co.  v.  Duke,  75  Ind.  535;  Peters  v. 
Banta,  120  Ind.  416.  Whatever  fair  in- 
tendment will  supply  will  be  deemed  to 
exist.  Sharpe  v.  Clifford,  44  Ind.  346; 
Howorth  v.  Scarce,  29  Ind.  27S;  Barnes 
v.  Bell,  39  Ind.  32S;  Galvin  r1.  Woollen, 
66  Ind.  464;  Scott  v.  Zartman,  61  Ind. 
328;  Louisville,  etc..  Co.  V.  Spain,  61 
Ind.  460;  Bales  v.  Scott,  26  Ind.  202; 
Gander  v.  State,  50  Ind.  539;  Griesel  v. 
Schmal,  55  Ind.  475;  Parker  v.  Clay- 
ton, 72  Ind.  307. 


QJJESTIONS  FIRST  MADE  ON   APPEAL. 


395 


errors.  It  is  a  necessary  sequence  of  the  propositions  stated 
that  a  complaint  will  prevail  against  an  original  attack  on  ap- 
peal, however  defectively  it  may  allege  facts,  if  its  allegations 
are  such  as  to  authorize  the  court  to  remedy  defects,  or  supply 
omissions,  by  liberal  and  reasonable  intendment.1  There  is 
in  such  cases  reason  for  liberality,  none  for  strictness.  A  strict, 
or  technical,  exactness  would  render  the  statutory  provision  a 
trap  for  the  unwary  and  often  lead  to  the  defeat  of  justice.2 

§  474.  One  good  paragraph  will  save  the  Complaint — An  orig- 
inal attack  on  appeal  will  not  prevail  against  a  complaint  con- 
taining one  good  paragraph,  although  there  may  be  many  bad 
ones.  An  original  attack  can  not  prevail  unless  the  whole 
complaint  is  bad.3     This  conclusion,  it  is  evident,  is  the  only 


1  Burkett  v.  Holman,  104  Ind.  6; 
Charlestown  School  Tp.  v.  Hay,  74  Ind. 
127;  Baltimore,  etc.,  R.  Co.  v.  Kreiger, 
90  Ind.  380;  Du  Souchet  v.  Dutcher,  113 
Ind.  249;  Taylor  v.  Johnson,  113  Ind. 
164;  Donnellan  v.  Hardy,  57  Ind.  393; 
Lassiter  v.  Jackman,  SS  Ind.  118;  Kin- 
ney v.  Dodge,  101  Ind.  573;  Smith  v. 
Smith,  106  Ind.  43;  Becknell  v.  Beck- 
nell,  no  Ind.  42. 

2  It  is  no  more  than  a  just  application 
of  a  sound  principle  to  hold,  as  it  has 
been  held,  that  if  there  is  enough  in 
the  complaint  to  bar  another  action 
an  original  attack  upon  appeal  will 
be  unavailing.  Harris  v.  Wright,  123 
Ind.  272;  Du  Souchet  v.  Dutcher,  113 
Ind.  249;  Burkhart  r^.Gladish,  123  Ind. 
337;  Laverty  v.  State,  109  Ind.  217; 
Harper  v.  Pound,  10  Ind.  32.  There 
is,  indeed,  little  reason  for  favoring  a 
party  who  lies  by  without  challenging 
the  complaint  in  the  trial  court  where 
there  is  full  opportunity  for  him  to  do 
so,  and  where  a  challenge  from  him 
would  arouse  the  attention  of  the  trial 
court  and  fairly  warn  his  adversary  of 
the  imperfections  in  the  pleading.  It 
is  upon  solid  ground,  therefore,  that  the 
court  proceeds  in  dealing  liberally  with 


a  complaint  which  passed  the  trial  court 
unchallenged. 

3  Buchanan  v.  Lee,  69  Ind.  117;  Smith 
v.  Freeman,  71  Ind.  85;  Murdock  v. 
Cox,  118  Ind.  266;  United  States,  etc., 
Co.  t'.Rawson,  106  Ind.  215;  Louisville, 
etc.,  Co.  v.  Corps,  124  Ind.  427;  Louis- 
ville, etc.,  Co.  v.  Ader,  no  Ind.  376; 
Charlestown  School  Tp.  v.  Hay,  74 
Ind.  127;  McCormick,  etc.,  Co.  v.  Gray, 
114  Ind.  340;  McCallister  v.  Mount,  73 
Ind.  559;  Ludlow  v.  Ludlow,  109  Ind. 
199;  Louisville,  etc.,  Co.  v.  Peck,  99 
Ind.  68;  Haymond  v.  Saucer,  84  Ind.  3; 
Schuff  v.  Ranson,  79  Ind.  458;  Carr  v. 
State,  Si  Ind.  342;  lies  v.  Watson,  76 
Ind.  359;  Elmore  v .  McCrary,  So  Ind. 
544;  Wabash,  etc.,  R.  Co.  v.  Nice.  99 
Ind.  152;  Stout  v.  Turner,  102  Ind.  41S. 
In  Louisville,  etc.,  Co.  v.  Peck,  99  Ind. 
68,  69,  the  court  said:  "The  assign- 
ment that  neither  paragraph  of  the  com  - 
plaint  states  facts  sufficient  to  consti- 
tute a  cause  of  action  really  presents  no 
question.  Such  an  assignment  can  only 
be  made  in  regard  to  the  complaint  as 
a  whole,  and  where  properly  made,  as 
also  a  motion  in  arrest  of  judgment  as 
here  made,  calls  in  question  the  suffi- 
ciency of  the    complaint    as   a    whole. 


396 


APPELLATE  PROCEDURE. 


just  one  that  can  be  deduced  from  principle  and  it  is  sustained 
by  all  the  analogies  of  the  law  of  procedure.  While  different 
paragraphs  of  a  complaint  may  be  distributively  assailed  by 
demurrer,  no  such  assault  can  be  successfully  made  on  appeal, 
for  one  good  paragraph  will  sustain  a  judgment. 

§  475.   Judgment  by  Default — Requisites  of  the  Complaint — The 

rule  that  such  pleadings  as  a  complaint,  or  cross-complaint,  can 
not  be  attacked  on  appeal  unless  there  is  an  entire  failure  to 
state  a  cause  of  action  seems  to  be  somewhat  relaxed  in  cases 
where  the  judgment  is  rendered  on  default.  In  such  cases  the 
rule  appears  to  be  that  if  the  complaint  is  not  such  as  would 
withstand  a  demurrer  it  may  be  first  assailed  by  the  assignment 
of  errors.1  This  doctrine  proceeds  upon  the  theory  that  as 
there  was  no  trial  and  no  evidence  adduced,  the  rule  that  absent 
allegations  may  be  supplied  by  intendment  can  not  apply  and 
the  right  to  a  recovery  must  depend  wholly  upon  the  complaint. 
There  is  reason  for  this  ruling,  but,  nevertheless,  it  is  a  ruling 
to  be  carefullv  limited,  for  it  comes  very  near  trenching  upon 
settled  and  salutary  principles. 


I  Knee  if  either  paragraph  is  sufficient, 
neither  of  the  assignments  here  can  he 
maintained."  The  court  cited  the  cases 
of  Leedy  v.  Nash,  67  Ind.  311;  Smith 
v.  Freeman,  71  Ind.  85;  Wagner  v. 
Wagner,  73  Ind.  135;  Elmore  v.  Mc- 
Crary,  So  Ind.  544;  lies  v.  Watson,  76 
Ind.  359;  Jones  v.  Pothast,  72  Ind.  158; 
Toledo,  etc.,  Co.  v.  Milligan,  52  Ind. 
,  Spahr  :r.  Nicklaus,  51  Ind.  221. 
To  the  same  effect  as  Louisville,  etc., 
Co.  v.  Peck,  supra,  are  Higgins  V.  Ken- 
dall, 73  Ind.  522;  Stout  v.  Turner,  102 
Ind.  41S.  See,  also,  Branch  v.  Faust, 
11;  End.  4.64;  Ashton  v.  Shepherd,  120 
Ind.  69;  Burkhardt  v.  Gladish,  123  Ind. 
337;  Taylor  v.  Johnson,  113  Ind.  164. 
It  is  quite  clear  from  the  authorities 
cited,  as  well  as  from  other  cases,  that 
Bolin  v.  Simmons,  Si  Ind.  92,  is  in  part 
neous.  It  is  so  undoubtedly  in  so 
.it  is  in   conflict  with  the  doctrine 


declared  in  the  extract  we  have  made 
from  the  opinion  in  Louisville,  etc.,  Co. 
v.  Peck,  supra. 

1  OKI  v.  Mohler,  122  Ind.  594;  Collins 
v.  Gibhs,  2  Burr.  S99;  Abbe  v,  Marr,  14 
Cal.  210;  Strock  v.  Commonwealth,  90 
Pa.  St.  272;  Gould's  PI.  471;  Bliss  Code 
PI.,  §  43S.  In  Old  v.  Mohler,  supra,  the 
doctrine  of  such  cases  as  Parker  v.  Clay- 
ton, 72  Ind.  307,  Lassiter  v.  Jackman, 
SS  Ind.  11S,  Owen  School  Tp.  v.  I  lav. 
107  Ind.  351.  Eberhart  v.  Reister,  96 
Ind.  47S,  Westfall  v.  Stark,  24  Ind.  377, 
Scott  v.  Zartman,  61  Ind.  328,  is  ap- 
proved, but  it  is  held  that  the  doctrine 
asserted  in  those  cases  does  not  apply 
where  there  is  a  judgment  upon  default 
inasmuch  as  there  is  no  evidence  from 
which  a  cure  for  an  error  can  be  ex- 
tracted as  there  is  in  cases  where  there 
is  a  trial  and  a  verdict. 


QUESTIONS  FIRST  MADE  ON   APPEAL.  397 

§  476.   Answers  can  not  be  Attacked  for  the  First  Time  on  Appeal 

— The  rule  which  authorizes  an  original  attack  upon  a  com- 
plaint in  the  assignment  of  errors  on  appeal  does  not  apply  to 
answers.1  The  change  wrought  by  the  act  of  1881,2  which 
omits  the  clause  contained  in  the  code  of  1852  concerning 
waiver  by  a  failure  to  demur,3  does  not  go  so  far  as  to  entitle 
the  plaintiff  to  attack  an  answer  for  the  first  time  in  the  Su- 
preme Court.  This  must  result  from  the  rule  declared  in  many 
cases  that  even  though  no  answer  at  all  is  filed  the  judgment 
will  not  be  reversed  where  parties  go  to  trial  without  objection.4 
If  the  rule  is  as  declared  in  the  long  line  of  cases  referred  to, 
it  must  necessarily  follow  that  where  there  is  an  insufficient 
answer  not  demurred  to  there  is  a  waiver  of  the  right  to  object 
after  having  voluntarily  submitted  the  cause  for  trial,  since  it  is 
not  reasonable  to  hold  that  where  there  is  an  answer,  although 
insufficient,  the  defendant  is  at  a  greater  disadvantage  than  if 
there  were  no  answer  at  all.  It  would  be  very  difficult,  if  not 
impossible,  to  frame  a  plausible  theory  in  support  of  the  posi- 
tion that  no  answer  at  all  puts  the  plaintiff  in  a  better  situation 
than  he  would  be  if  the  defendant  had  filed  a  defective  answer.5 
The  semblance  of  an  answer  is  at  least  as  good  as  no  apology 
for  one.  The  rule  that  where  incompetent  evidence  sustains 
the  verdict  there  can  be  no  reversal  in  cases  where  the  evidence 
goes  to  the  jury  without  objection6  requires  that  it  be  held  that 

1  Chicago,  etc.,  Co.  v.  Modesitt,  124  33  Ind.  546;   Kirkpatrick  v.  Alexander, 

Ind.212;  Bledsoe  v.  Rader,  30  Ind.  354;  60  Ind.  95;  Benoit  v.  Schneider,  47  Ind. 

Crowder   v.  Reed,   80  Ind.  1;    City  of  13;    Moffit  v.  Medsker    Draining  Co., 

Evansville   v.    Martin.    103    Ind.    206;  48   Ind.   107;    Casad   v.   Iloldridge,   40 

Klein  v.  Fischer,  30  Mo.  App.  Ct.  568.  Ind.  529;   Purdues.  Stevenson.  54  Ind. 

1  R.  S.  1881,  §  343.  161;  Holten  v.  Board  of  Commission- 

3  2  R.  S.  1876,  p.  65,  §  64.  ers,  etc.,  55  Ind.  194. 

4  Farmers  Loan  and  Trust  Company  5  It  is  to  be  borne  in  mind  that  .we 
v.  Canada,  etc., Co.,  127  Ind.  250;  Bender  are  here  speaking  of  the  effect  of  the 
v.  State,  26  Ind.  285;  June  v.  Payne,  107  change  in  the  statute  with  respect  to 
Ind.  307;  City  of  Warsaw  v.  Dunlap,  attacking  answers  for  the  first  time  in 
112  Ind.  576;  Hartlep  v.  Cole,  101  Ind.  the  Supreme  Court,  and  not  as  to  the 
458;  Johnson  v.  Briscoe,  92  Ind.  367;  effect  of  the  change  upon  the  doctrine 
Hege  V.  Newsom,  96   Ind.  426;  Cham-  of  carrying  back  a  demurrer. 

bers  v.  Butcher,  82  Ind.  508;  Lewis  v.  6  Stockwell  v.  State,  101  Ind.  1 ;  Riehl 
Bortsfield,  75  Ind.  390;  Felger  v.  Et-  v.  Evansville  Foundry,  104  Ind.  70;  Kin- 
zell,  75  Ind.  417;   McCormick  v.  Hyatt,     caid  v.  Indianapolis   Natural   Gas  Co., 


APPELLATE  PROCEDURE. 


an  answer  can  not  be  successfully  assailed  on  appeal  for  the 
first  time.  It  is  in  harmony  with  the  spirit  of  the  code  which  is 
that  objections  shall  be  seasonably  and  openly  presented,  and 
that  no  devices  intended  to  ensnare  or  entrap  litigants  shall  be 
tolerated.1 

§  477.  Cross-Complaint  or  Counter-Claim— A  cross-complaint  or 
counter-claim2  stands  upon  a  different  footing  from  that  on  which 
an  answer  rests.  A  counter-claim  under  the  reformed  system 
of  procedure  established  by  the  code  is  substantially  the  same 
thing  as  a  complaint,  inasmuch  as  its  office  is  to  state  a  cause 
of  action  which  will  entitle  the  party  who  files  it  to  affirmative 
relief.3  It  is  to  be  observed,  however,  that  a  counter-claim 
must  plead  matters  that  are  not  entirely  foreign  to  the  matter 
to  which  the  complaint  relates,1  but  it  may,  nevertheless,  allege 


124  Ind.  577;  Judd  v.  Small,  107  Ind. 
398;  McFadden  v.  Fritz,  no  Ind.  1; 
Compton  v.  Ivey,59lnd.  352;  Indiana, 
etc.,  Co.  v.  Finnell,  116  Ind.  414,422; 
Graves  -'.State.  121  Ind.  357;  Yeagerf. 
Wright,  112  Ind.  230;  Roberts  v.  Gra- 
ham, 6  Wall.  578;  Cross  v.  People,  47 
111.  152,  S.  C.  95  Am.  Dec.  474;  Stod- 
dard v.  Chambers.  2  How.  2S4;  Hough- 
ton v.  Jones,  1  Wall.  702;  Fowler  v. 
Bowery,  etc.,  Bank,  113  N.  Y.  450. 

1  City  of  Evansville  v.  Martin,  103 
Ind.  206;  Riehl  v.  Evansville  Foundry, 
104  Ind.  70.  74.  In  Indianapolis,  etc., 
Co.  f.  Petty,  30  Ind.  261,  it  was  said: 
"The  code  has  very  little  toleration 
for  the  practice  of  concealing  questions 
from  the  lower  courts  with  a  view  to 
make  them  available  on  appeal." 

2  Under  the  code  a  counter-claim  is 
a  pleading  by  a  party  to  a  suit,  or  ac- 
tion, setting  up  an  affirmative  cause  of 
action,  and  is  really  the  correct  name 
of  the  pleading  often  called  a  cross- 
complaint.  In  this  State  the  pleading 
i>  usually  designated  as  a  cross-com- 
plaint, although  in  strictness  it  should 
be  designated  as  a  counter-claim.  The 
terms    "cross-complaint"  and    "coun- 


ter-claim "  as  ordinarihy  used  denote 
the  same  thing,  although  a  counter- 
claim is  something  more  than  a  cross- 
complaint,  inasmuch  as  it  includes  the 
element  of  recoupment.  Standley  v. 
Northwestern  Insurance  Co.,  95  Ind. 
254,  and  cases  cited. 

3  Jones  v.  Hathway,77  Ind.  14;  Stand- 
ley  v.  Northwestern,  etc.,  Ins.  Co.,  95 
Ind.  254;  Dietrich  v.  Koch,  35  Wis. 
618,  626;  Tyler  -■.  Willis,  33  Barb.  327, 
333;  Belleau  v.  Thompson,  33  Cal.  495; 
Great  West  Ins.  Co.  v.  Pierce,  1  Wyo. 
49;  Clarkson  v.  Manson,  60  How.  Pr. 
Rep.  45,  4S;  Gilliman  v.  Eddy,  S  How. 
Pr.  Rep.  133;  Winterfield  v .  Bradnum, 
3  Q^B.  D.  324,  326;  Hay  v.  Short,  49 
Mo.  139,  143;  Grignon  v.  Black,  45  N 
W.  Rep.  122;  Thomson  v.  Sanders,  118 
N.  Y.  252,  S.  C.  23  N.  E.  Rep.  374; 
Woodruff  v.  Garner,  27  Ind.  4. 

4  Sterne  -'.  First  National  Bank,  79 
Ind.  560;  Williams  v.  Boyd,  75  Ind. 
286;  Hunter  v.  McLaughlin,  43  Ind. 
38;  Shelly  v .  Vanarsdoll,  23  Ind.  543; 
Grimes  v.  Duzan,  32  Ind.  361;  Camp- 
bell v.  Routt,  42  Ind.  410;  White  v. 
Miller,  47  Ind.  3S5;  Thompson  v. 
Toohev,    71    Ind.    296;     Washburn    V. 


QUESTIONS  FIRST   MADE   ON   APPEAL.  39<J 

such  facts  as  constitute  a  substantive  cause  of  action.  There  is 
such  a  clear  and  well  defined  distinction  between  a  counter- 
claim and  an  answer  that  it  has  been  held  again  and  again  that 
an  answer  can  not  perform  the  office  of  a  counter-claim.1 

§  478.  Requisites  of  a  Counter-Claim — A  counter-claim  or  cross- 
complaint  is  to  be  tested  substantially  as  a  complaint,  and  must, 
as  a  general  rule,  be  sufficient  in  itself.2  As  it  is  to  be  thus 
tested  and  must  stand  substantially  as  a  complaint,  it  is  but 
reasonable  to  hold  that  it  may,  when  radically  defective,  be 
challenged  on  appeal.3  It  is  not  to  be  forgotten,  however,  that 
it  is  only  counter-claims  that  are  substantially  cross-complaints 
that  can  be  first  assailed  in  the  court  of  last  resort.  Not  every 
pleading  that  opposes  a  cause  of  action  by  an  affirmative  de- 
fense can  be  regarded  as  strictly  a  counter-claim,  and  it  is  only 
to  pleadings  that  are  properly  counter-claims  that  the  rules 
stated  are  relevant.  The  fact  that  a  defense  by  way  of  mere 
recoupment  is  not  always  a  counter-claim  in  the  sense  implied 
when  a  pleading  setting  up  a  cause  of  action  is  referred  to  does 

Roberts,  72  Ind.  213;  Williams  v.  62  Ind.  259;  Gabe  v.  McGinnis,  55  Ind. 
Boyd,  75  Ind.  286;  Standley  v.  North-  372;  Hinkle  v.  Margerum,  50  Ind.  240. 
western,  etc.,  Ins.  Co. ,95  Ind.  254;  Har-  2  Gossard  v.  Woods,  98  Ind.  195; 
rison  v.  McCormick,  69  Cal.  616,  S.  C.  Jones  v.  Hathaway,  77  Ind.  14. 
11  Pac.  Rep.  456;  Humbert  v.  Brisbane,  3  Conger  v.  Miller,  104  Ind.  592; 
25  So.  Car.  506;  Clark's  Cove  Guano  Wadkins  v.  Hill,  106  Ind.  543;  Shoe- 
Co.  v.  Appling,  33  W.  Va.  470,  S.  C.  10  maker  v.  Smith,  74  Ind.  71 :  Masters  v. 
S.  E.  Rep.  809.  The  name  does  not  de-  Beckett,  S3  Ind.  595;  Anderson  v.  Wil- 
termine  the  character  of  the  pleading;  son,  100  Ind.  402;  Ewing  v.  Patterson, 
that  must  be  determined  from  the  facts  35  Ind.  326.  There  is  an  exception  to 
pleaded.  Searle  t'.Whipperman,  79  Ind.  this  general  rule  which  it  may  be  well 
424;  Johnson  v.  Hosford,  no  Ind.  572;  to  note,  although  it  does  not  affect  the 
Crowder  v.  Reed,  80  Ind.  1;  Harrison  phase  of  the  subject  under  immediate 
v.  McCormick,  69  Cal.  616,  S.  C.  n  consideration,  and  that  is  that  an  ex- 
Pac.  R.  456.  hibit  filed  with  the  complaint  may  be 
'Anderson,  etc.,  Association  v.  referred  to  by  the  counter-claim  or 
Thompson,  88  Ind.  405;  Gaff  v.  Greer,  cross-complaint.  Pattison  v.  Vaughan, 
88  Ind.  122;  Hadley  v.  Prather,  64  Ind.  40  Ind.  253;  Sidener  v.  Davis.  69  Ind. 
137;  Douthitt  v.  Smith,  69  Ind.  463;  336;  Gardner  v.  Fisher,  87  Ind.  369; 
Crowder  v.  Reed,  80  Ind.  1 ;  Conger  v.  Anderson  v.  Wilson,  100  Ind. 402.  The 
Miller,  104  Ind.  592;  Schee  v.  McQuil-  exception  tests  the  rule  but  does  not 
ken,  59  Ind.  269;  Toledo,  etc.,  Works  v.  overthrow  it;  it  is,  indeed,  all  the  clearer 
Work,  70  Ind.  253;  Stockton  v.  Stock-  and  stronger  for  the  te6t. 
ton,  73  Ind.  510;  Branham  v.  Johnson, 


400  APPELLATE  PROCEDURE. 

not,  however,  oppose  the  conclusions  stated,  since  there  may- 
be a  mere  defense  in  the  nature  of  a  counter-claim,  A  defense 
which  does  no  more  than  meet  a  cause  of  action  alleged  in  a 
complaint  can  not,  with  propriety,  be  denominated  a  cross-com- 
plaint or  a  counter-claim.1  In  a  qualified  sense  such  a  defense 
may  be  a  counter-claim,  that  is,  it  may  arise  out  of  a  counter- 
claim— it  may  be  an  affirmative  claim  opposed  to  that  of  the 
plaintiff' — but  it  is,  nevertheless,  not  a  counter-claim  in  the  sense 
in  which  that  term  is  employed  when  a  pleading  which  is  akin 
to  a  cross-complaint  and  which  sets  forth  facts  constituting  a 
cause  of  action  entitling  the  party  to  affirmative  relief  is  intended 
to  be  named  or  designated. 

§  479.  Reply — The  principle  which  requires  the  conclusion 
that  the  sufficiency  of  an  answer  can  not  be  challenged  on  ap- 
peal for  the  first  time  applies  to  a  reply,  and  it  has  been  held 
that  a  reply  can  not  be  successfully  attacked  for  the  first  time 
on  appeal.2  This  principle  is,  indeed,  the  one  which  gives  to 
an  appellate  tribunal  its  chief  characteristic,  for  such  a  tribunal 
is  primarily  and  essentially  one  for  the  review  of  decisions  of  a 
court  of  inferior  jurisdiction  and  not  one  for  the  decision  of 
questions  not  adjudicated  by  some  other  judicial  tribunal.  Man- 
ifestly a  leading  purpose  of  the  creation  of  appellate  tribunals 
is  to  give  litigants  an  opportunity  for  securing  the  judgment  of 
two  courts  upon  the  same  questions  ;  if  it  were  otherwise  it 
would  in  many  instances  be  quite  as  well  to  simply  require  the 
decision  of  a  single  tribunal.     It  is,  therefore,  a  departure  from 

1  It  is  upon  this  ground  that  the  de-  upon  which  relief  may  be  adjudged  as 

cision  in  Hall  7'.  Hedrick,  125  Ind.  326,  fully  as  to  an  original  plaintiff.     The 

S.  C.  25  N.  E.  Rep.  350,  may  be,  per-  case  of  Luntz  v.  Greve,  102  Ind.   173, 

haps,  sustained,  but  the  doctrine  of  that  is  of  a  different  type,  for  in  that  case 

case  can  not  be  extended  to  cases  where  the  counter-claim  secured  all  the  relief 

the  counter-claim  states  a  cause  of  ac-  an  answer  could   possibly  do  under  the 

tion  which  entitles  the  cross-complain-  statute,  but  an  answer  can,  it  is  obvious, 

ant  to  affirmative  relief.    This  is  evident  very  rarely,  if  ever,  procure  the  full  re- 

when     it    is    brought    to    mind    that    a  lief  that  a  counter-claim  may  secure. 
counter-claim  will    stand  although   the         2  Hon  v.  State,  89  Ind.  249;   Walker 

complaint  is  dismissed,  and  that  a  cross-  v.  Scott,  106  N.  C.  56,  S.  C.  1 1  S.  E.  Rep. 

plaint   or  counter-claim   may,   and  364;   Wood  v.  Lake,  13  Wis.  84. 
usually    does,   state    a  cause   of  action 


QUESTIONS  FIRST  MADE  ON   APPEAL.  401 

principle  to  permit  original  questions  to  be  made  in  an  appellate 
tribunal,  except  in  cases  where  there  is  clearly  no  cause  of  ac- 
tion,1 or  no  jurisdiction. 

§  480.   The  Doctrine  applicable  to  Answers  and  Replies — It  is 

true  that  in  some  of  the  cases  expressions  may  be  found  which 
seem  to  authorize  the  conclusion  that  the  question  of  the  suffi- 
ciency of  an  answer  or  reply  may  be  made  in  the  first  instance 
on  appeal,  but  the  strong  current  of  authority  is  against  that 
doctrine.  It  is,  indeed,  impossible  to  enforce  that  doctrine 
without  doing  violence  to  one  great  object  which  the  framers 
of  our  code  sought  to  attain,  and  that  is,  as  has  been  already 
suggested,  to  compel  parties  to  bring  forward  all  objections 
which  they  desire  to  make  available  on  appeal  so  that  the  ad- 
verse parties  may  be  informed  of  them  and  the  trial  court  be 
so  fully  apprized  of  their  character  as  to  enable  it  to  intelligently 
grasp  the  legal  principles  involved.  In  almost  every  phase 
and  posture — in  civil  cases,  in  criminal  cases  and  in  special 
proceedings — the  general  question  has  been  presented  and  in 
every  well  considered  case  the  judgment  of  the  court  has  been 
that  questions  on  the  pleadings  (subject  to  the  exceptions  here- 
tofore noticed)  must  be  so  presented  •  to  the  trial  court  as  to 
challenge  and  require  its  decision.2 

1  Some  able  courts  do,  indeed,  hold  Frank,  76  Ind.  594;  Smith  v.  Foster,  59 
that  even  where  there  is  no  cause  of  ac-  Ind.  595;  Sloan  v.  Wittbank,  12  Ind. 
tion  stated  an  attack  on  appeal  for  the  444;  Allis  v.  Gumberts,  1  Ind.  104;  Key 
first  time  will  be  unavailing.  Knapp  v.  Robinson,  8  Ind.  36S;  Shawt'.Bink- 
v.  Simon,  96  N.  Y.  284;  McKnight  v.  ard,  10  Ind.  227;  Tinder  v.  Association, 
Devlin,  52  N.  Y.  399.  47  Ind.  351;   Bowman  v.  Philips,  47  Ind. 

2  Zehnor  v.  Beard,  S  Ind.  96;  Horn-  341;  Rhodes  v.  Mummery,  48  Ind.  216; 
berger  v.  State,  5  Ind.  300;  Scheible  v.  Higham  v.  Warner,  69  Ind.  549;  Potts 
Slagle,  89  Ind.  323;  Cupp  v.  Campbell,  v.  Felton,  70  Ind.  166.  Other  courts 
103  Ind.  213;  Buchanan  v.  Berkshire  affirm  the  same  general  doctrine.  Cop- 
Life  Ins.  Co.,  96  Ind.  510;  Shirts  v.  ley  v.  Rose,  2  N.Y.  115;  Neft"  v.  Clute, 
Irons,  28  Ind.  458;  Hauser  v.  Roth,  37  12  Barb.  466;  Lane  v.  Pere  Marquette, 
Ind.  89;  Johnson  v.  Stebbins,  5  Ind.  etc.,  Co.,  62  Mich.  63,  S.  C.  2S  N.  W. 
364;  Newhouse  v.  Miller,  35  Ind.  463;  Rep.  786;  Patton  v.  Gash,  99  N.  C.  2S,  S. 
Haiinum  v.  State,  38  Ind.  32-  Camp-  C.  6  S.  E.  Rep.  193;  Richardson  v. 
bell  v.  Coon,  61  Ind.  516;  English  v.  Woodring,  74  Iowa,  149,  S.  C.  37  N. 
State,  Si  Ind.  455;  Louisville,  etc.,  W.  Rep.  122;  Jefferson  v.  Chapman, 
Co.   v.  Fox,    101    Ind.   416;    Kurtz    v.  127IH.43S. 

26 


102  APPELLATE  PROCEDURE, 

§  481.  The  Reason  of  the  Role — There  is  solid  reason  for  the 
general  rule  that  a  party  who  litigates  questions  without  pre- 
senting objections  to  the  pleadings,  or  without  calling  upon  the 
trial  court  to  require  pleadings,  shall  not  be  heard  on  appeal  to 
urge  that  there  were  no  pleadings  or  that  they  were  not  suffi- 
cient, and  a  departure  from  this  rule  would  cause  almost  end- 
less and  hopeless  confusion.  The  rule  is  required  to  give  con- 
sistency to  appellate  practice  ;  indeed  without  it  there  could  be 
no  system,  since,  in  the  absence  of  such  a  rule,  cases  would  be 
but  particular  instances  unregulated  by  any  principle,  forming 
fragmentary  and  disjointed  parts  of  legal  procedure  without 
connecting  elements,  and  destitute  of  uniformity  and  stability. 
The  rule  is  required  by  the  principle  often  declared  by  our  own 
and  other  courts  that  parties  on  appeal  must  abide  by  the  theory 
adopted  by  them  in  the  trial  court.1  It  is  required  by  the  gen- 
eral doctrine  that  the  court  of  last  resort  should  not  be  required 
to  decide  a  question  that  has  not  been  passed  upon  by  the  trial 
court,-  since  any  other  holding  would  in  effect  make  the  appellate 
court  one  of  original  jurisdiction.  The  true  theory  is  that  there 
must  be  a  decision  by  a  court  of  original  jurisdiction  to  be  re- 
viewed by  the  appellate  tribunal,  for  unless  this  be  so  the  ap- 
pellate court  becomes  a  trial  court. 

§  482.  Rendering  Judgment  on  the  Pleadings — Resembling  but 
yet  essentially  different  from  the  questions  arising  upon  the  rule 
which  permits   complaints   and  counter-claims,  or  cross-com- 

1  Brink  v.  Reid,  122  Ind.  257;  Louis-  tiss  v.  Hazen,  56  Conn.  146;  Home, 
ville,  etc.,  Co.  f.  Wood,  113  Ind.  544;  etc.,  Co.  v.  Caldwell,  85  Ala.  607;  Han- 
Carver  v.  Carver,  97  Ind.  497;  Adams  son  v.  Fricker,  79  Cal.  283,  21  Pac.  Rep. 
v.  Davis,  109  Ind.  jo;  Lake  Eric,  etc.,  751;  Nelson  v.  Wilson,  75  Iowa,  710, 
Co.  v.  Acres,  10S  Ind.  54S;  Bloomfield  S.  C.  3S  N.  W.  Rep.  134;  Coffman  v. 
R.  R.  Co.  v.  Van  Slike,  107  Ind.  480;  Acton,  74  Iowa,  147.  S.  C.  37  N.W.  Rep. 
Vann  v.  Rouse,  94N.Y.401,  407;  Ger-  121;  Gorsuch  v.  Rutledge,  70  Md.  272, 
non  v.  Hoyt,  90  N.  Y.  631;  Campbell  17  Atl.  Rep.  76;  Engleman  v.  Arnold, 
v. Birch,  60 ifr.Y.  214;  Wilson  v.  Rocke,  11S  Ind.  81,  S.  C.  20  N.  E.  Rep.  505; 
58  N'.Y.  642;  Hill  v.  Heermans,  17 Hun.  Taylor  v.  Nichols,  86  Tenn.  32,  S.  C  5 
470;   Paige  v.  Fazackerly,  36  Barb.  392.  S.  W.    Rep.  436;    Beatty  v.  Brown.  85 

*  ,Osborne  &  Co.  ^.Williams,  37  Minn.  Ala.  209;  Jones  7.    Degge,  84  Va.  f>Sq; 

507;  Sylvis  v.  Sylvis,  n  Col.  319,  17  Pa.  Bewley  v.  Graves.  17  Ore.  274,  20  Pac. 

Rep.  912;  Porter  v. Western,  etc.,Co., 97  Rep.  322;  Budd  v.  Power,  8  Mont.  380. 
N.C.  66,  S.  C.  2  Am    St.  R.  272;   Cur- 


QUESTIONS   FIRST   MADE   ON   APPEAL.  4Q3 

plaints,  to  be  assailed  in  the  first  instance  on  appeal  are  the 
questions  which  grow  out  of  the  practical  application  of  the 
rule  that  a  party  may,  in  the  proper  case,  have  judgment  in  his 
favor  on  the  pleadings.1  It  has  been  held  that  where  there  is 
no  complaint  or  no  answer  the  party  in  fault  may  be  compelled 
to  suffer  judgment,  unless  there  has  been  a  waiver  or  something 
has  intervened  which  precludes  the  party  from  demanding  such 
a  judgment.2  But  the  question  which  connects  itself  with  the 
subject  here  under  immediate  consideration  is  not  solved  by 
the  rule  stated,  since  it  is  here  necessary  to  ascertain  whether 
a  party  can  in  the  first  instance  successfully  demand  judgment  on 
the  pleadings  after  the  case  reaches  the  appellate  court.  It  is  clear 
from  the  reasoning  in  analogous  cases  that  the  sound  rule  is  that 
the  question  of  the  right  of  a  party  to  judgment  on  the  pleadings 
can  not  be  first  made  on  appeal,  since  no  opportunity  was  afforded 
the  trial  court  to  consider  or  decide  that  question,  and  beyond 
controversy  the  general  rule  is  that  no  question  can  be  made 
on  appeal  which  was  not  appropriately  presented  to  the  trial 
court.  The  exceptions  to  this  general  rule  have  been  consid- 
ered, and  it  is  evident  that  the  case  of  a  party  asking  judgment 
on  the  pleadings  does  not  fall  within  those  exceptions  :  hence 
it  is  correctly  held  that  a  party  must  first  move  in  the  trial 
court  for  judgment  on  the  pleadings.3 

§  483.    Set-Off — After  much  wavering  it  has  been  held  that  a 
set-off  is   substantially  the   same  thing  as  a  counter-claim  or 

1  R.  S.  1SS1,  §  566.  sylvania   Co.   v.    Roney,   89   Ind.  453; 

2  Fitch  v,  Polke,  5  Blackf.  86;  Board  Bledsoe  v.  Rader,  30  Ind.  354;  Here- 
of Trustees  of  the  Wabash,  etc.,  Co.  v.  dith  v.  Lackey,  16  Ind.  1,  6;  Wells  v. 
Mayer,  10  Ind.  400;  Martindale  v.  Price,  Dickey,  15  Ind.  361;  Martindale  v, 
14  Ind.  115;  Needham  v.  Webb,  20  Ind.  Price,  14  Ind.  115;  Dunham  v.  Court- 
213.  See,  upon  the  subject  generally,  enay,  24  Neb.  627;  Budd  v.  Power,  8 
Musselman  t'.Wise,  84  Ind.  248;  Brown  Mont.  380.  See,  generally,  Willey  v. 
v.  Searle,  104  Ind.  21S;  Donaldson  v.  Strickland,  S  Ind.  453;  Meredith  v. 
Dunn, 87  Ind.  343;  Cox  v.  Vickers,  35  Lackey,  14  Ind.  529;  Roush  v.  Emer- 
Ind.  27;  Train  v.  Gridley,  36  Ind.  241;  ick,  So  Ind.  551;  Hauser  v.  Roth,  37 
Locke  v.  Merchants  National  Bank,  66  Ind.  S9;  Fisher  v.  Purdue,  4S  Ind.  323; 
Ind.  353,  360.  Trentman  v.  Eldridge,  9S  Ind.  525,  ^27, 

3  Shordan  v.  Kyler,  87  Ind.  3S;  Fowler  v.  Bowery  Savings  Bank,  113 
Cupp  v.  Campbell,  103  Ind.  213;  Penn-  N.  Y.  450. 


404  APPELLATE  PROCEDURE. 

cross-complaint,  so  that,  possibly,  it  may  be  assailable  on  appeal.1 
Assuming  that  a  set-off  is  in  substance  a  counter-claim,  there 
is  no  difficulty  in  holding  it  subject  to  attack  on  appeal,  but  it 
is  not  quite  clear  on  principle  that  it  can  be  regarded  as  the 
same  thing  as  a  counter-claim.  That  question,  however,  is 
settled  by  the  later  decisions.  A  set-off  is  hard  to  classify  ;  it  is 
in  truth  a  nondescript,2  and  while  there  are  strong  reasons 
against  classifying  it  as  a  counter-claim  it  can  hardly  be  said 
that  the  classification  is  indefensible.  At  all  events,  it  is  better 
to  treat  the  question,  as  settled  and  steadily  hold  that  it  stands 
on  substantially  the  same  footing  as  a  cross-complaint  or  coun- 
ter-claim, than  to  produce  confusion  and  uncertainty  by  a 
wavering  line  of  decisions. 

§  484.  The  Rule  where  a  bad  Answer  is  proved — There  is  a  class 
of  cases  which  seems  to  trench  upon  the  general  rule  that  ques- 
tions upon  the  pleadings,  or  questions  concerning  the  failure  to 
plead,  must  be  first  presented  to  the  trial  court  and  its  decision 
invoked,  but,  upon  examination,  it  will  be  found  that  the  cases 
of  the  class  first  mentioned  may  be  discriminated  from  those 
which  assert  and  enforce  the  general  rule,  although  some  ex- 

1  Blount  v.   Rick,    107   Ind.   238,245;  be  good  might  well  be  held  bad  for  want 

Kennedy  v.  Richardson,    70    Ind.  524;  of  facts.     Richey  v.  Bly,  115   Ind.  232; 

Daily  v.  National,  etc.,  Co.,  64  Ind.  1;  Zeigelmueller  v.  Seamer,  63  Ind.  488; 

Gregory  v.  Gregory,  89  Ind.  345;  Cur-  Harris  v.  Rivers,  53  Ind.  216;   Shelly  v. 

ran  v.  Curran,  40  Ind.  473;   Mullendore  Vanarsdoll,  23  Ind.  543;   Indianapolis, 

v.  Scott,  45  Ind.  113;   Ewing  v.  Patter-  etc.,  Co.  v.  Ballard,  22  Ind.  448.     This 

son,  35  Ind.  326;   Shoemaker  v.  Smith,  consideration  proves  that  the  reasoning 

7)  Ind.  71;  Boil  v.  Simms,  60  Ind.  162;  in  Boils  v.  Simms,  supra,  is  not  sound, 

Wills   v.   Browning,  96  Ind.  149;   Rush  whatever  may  be  said  of  the  conclusion 

v.  Thompson,  112   Ind.   158,   165.     The  reached.     The  case  of  Roback  r*.  Pow- 

earlii  i                            ,1   a  somewhat  dif-  ell,  36  Ind.  515,  can  not  be  harmonized 

ferent  doctrine.     Hamilton  v.  Noble,  1  with   that  case,   nor,   indeed,  with   the 

Blackf.  18S;  Jones  v.  McGrew,  1  Blackf.  cases  first  named  above. 

192;  Coe  v.  Givan,  1  Blackf.  367;  Hanna  2  That   a  set-off  is    a    nondescript   is 

v.  Ewing,  3  Blackf.  34;  Young  v.  Harry,  evidenced    in   part  at   least  by  th(    facl 

ickf.   167;   Hurd  v.  Earl,  4    Blackf.  that  it  may  be  pleaded  notwithstanding 

184;  Conklin  v. Waltz,  3  Ind.  396.    The  the    bar  of  the    statute    of  limitations, 

earlier  decisions  were  not  without  some  Fankboner    v.  Fankboner,   20  Ind.  62; 

strength,  inasmuch  as  it  i-  settled  that  a  Armstrong  v.  Caesar,  72  Ind.  2S0;  Livi- 

set-off  can  not  be  pleaded  to  an  action  good  v.  Livigood,  6  Blackf.  268. 
for  a  tort,  and  an  answer  thai  could  not 


QUESTIONS  FIRST  MADE  OX  APPEAL.  405 

pressions  in  the  opinions  may  not  harmonize  with  the  rule.  The 
cases  to  which  reference  is  made  as  creating  apparent  excep- 
tions to  the  general  doctrine  are  those  in  which  it  is  held  that 
evidence  proving  a  bad  answer  will  not  support  a  judgment  in 
favor  of  the  defendant.1  Properly  limited  and  applied  the  doc- 
trine of  these  cases  is  not  at  variance  with  principle,  but  it  is 
one  to  be  carefully  confined  within  reasonable  limits.  The 
doctrine  may  be  upheld  where  the  evidence  wholly  fails  to 
make  out  a  defense  ;  that  is,  where,  conceding  all  that  it  fairly 
tends  to  prove,  the  defense  fails  as  to  so  mematerial  point.2  It 
can  not  be  so  extended  as  to  be  allowed  to  control  cases  where 
the  evidence  is  simply  incompetent,3  as  for  instance,  when 
parol  evidence  is  given  where  it  should  have  been  written,  or 
where  there  is  a  curable  variance,4  since,  to  permit  this  would 
be  to  permit  an  indefensible  violation  of  the  general  rule  that 
such  questions  must  be  presented  by  an  appropriate  objection 
and  exception  in  the  court  of  original  jurisdiction. 

§  485.   Effect  of  the  Rule  respecting  the  proving  of  a  bad  Answer 

— The  cases  which  hold  that,  where  the  evidence  entirely  fails 
to  establish  a  defense,  a  judgment  in  favor  of  the  defendant 
will  be  reversed,  although  the  answer  was  not  attacked  in  the 
trial  court,  do  not  authorize  the  inference  that  a  question  may 
be  made  on  appeal  for  the  first  time  upon  the  evidence  ;  on  the 
contrary,  the  inference  is  that  the  question  must  be  appropri- 
ately presented  to  the  trial  court  and  this  must  be  done,  in  gen- 
eral, by  a  motion  for  a  new  trial.  It  is  evident,  therefore,  that 
the  question  is  considered  on  appeal  upon  the  evidence,  not 
upon  the  pleading,  and  that  the  question  considered  is  the  same 
as  that  presented  to  the  trial  court  and  upon  which  that  court 
made  a  decision.  All  the  conditions  of  the  general  rule  re- 
quiring questions  to  be  first  presented  to  the  trial  court  are  thus 

1  McCloskey  t\  Indianapolis,  etc., Co.,  well  v.  State,  ioi  Ind.  i;  Riehl  v. 
67  Ind.  86;  Dorman  v.  State,  56  Ind.  Evansville  Foundry  Association,  104 
454;  Freitag  f.  Burke,  45  Ind.  38;  West-     Ind.  70. 

ern  Union  Tel.  Co.  v .  Fenton,  52  Ind.  1.  4  Coates  v.  First  National  Bank,  91 

2  It  may  well  be  doubted  whether  the  N.  Y.  20,  31;  Roberts  v.  Graham,  6 
decision  in  Roback  v.  Powell,  36  Ind.  Wall.  578;  Pike  v.  Evans,  15  John.  210, 
515,  does  not  go  too  far.  213. 

3  Graves  v.  State,  121  Ind.  357;  Stock- 


.|()(;  APPELLATE   PROCEDURE. 

complied  with,  and  there  is  neither  a  shifting  of  position  nor  an 
attempt  to  secure  a  decision  from  the  appellate  court  upon  an 
original  question.  It  is  clear,  that,  with  rare  exceptions,  which 
it  is  not  important  to  here  note,  an  appellant  would  not  be  heard 
to  complain  that  the  evidence  was  insullicient  to  establish  a  de- 
fense unless  he  had  properly  presented  that  question  to  the 
trial  court.  It  is,  in  truth,  not  because  the  answer  is  insufficient 
that  a  judgment  is  vulnerable  in  a  case  of  the  class  under  con- 
sideration, but  the  judgment  is  subject  to  attack  because  the 
finding  or  verdict  is  contrary  to  law  inasmuch  as  there  is  no 
evidence  upon  which  the  law  will  permit  a  recovery  by  the  de- 
fendant. He  fails  because  he  has  no  evidence  to  establish  a 
fact,  or  facts,  essential  to  a  recovery,  not  because  he  has  an  in- 
sufficient answer. 

§  486.  Effect  of  proving  a  bad  Answer — The  fact  that  the  trial 
court  declines  to  find  upon  insufficient  evidence  although  the 
answer  is  fully  proved,  does  not  require  the  conclusion  that  the 
case  is  an  exception  to  the  general  rule.  The  appeal  by  the 
plaintiff  brings  up  the  case  on  the  evidence  and  he  may^  with 
entire  propriety,  insist  upon  a  reversal  if  no  defense  is  estab- 
lished, although  he  may  not  have  assailed  the  answer  in  the 
court  below,  provided,  of  course,  that  he  there  made  the  proper 
motion  and  reserved  the  proper  exceptions.  He  can  not,  to  be 
sure,  assail  the  answer  for  the  first  time  on  appeal,  but  he  may 
attack  the  proof,  for  it  is  one  thing  to  attack  the  proof  and  an- 
other to  attack  a  pleading.  Where  the  defendant  appeals  and 
has  no  evidence  sufficient  to  authorize  a  finding  or  verdict  in 
his  favor,  he  can  not,  with  propriety  or  justice,  assert  that,  al- 
though he  has  no  evidence,  yet,  as  he  has  an  answer  which  has 
not  been  challenged,  he  is  entitled  to  judgment.1 

1  The  early  New  York  cases  of  Fox  as   asserting  that   doctrine.     In  strict- 
v.  Hunt.  S  How.  Pr.  R.  12.  and  M.illorv  ness  objections  should  be  presented  to 
Lamphear,   8    How.    Pr.   491.    have  pleadings  before   trial,  but  it  does  not 
been  practicallv  overruled.     Smith    v.  follow  because  objections  are  not  pre- 
Countryman,  30  V  Y.  655.     It  is  held  sented  before  trial  that  a  party  can  re- 
in the  case   last    named  that  objections  cover  where   the   facts   proved  are  not 
to  the  pleadings  should  be  presented  to  such  as  will  support  a  finding  or  ver- 
nd  the  case  of  Reynolds  diet.     The  question   is    not   disposed  of 
Lounsbury,  6  Hill,  534,  is  referred  I  ■  by  declaring  that  objections  to  plead- 


QUESTIONS  FIRST  MADE  OX   APPEAL.  4Q7 

§  487.  Anomalous  Cases — Anomalous  cases  occasionally  arise 
which  can  hardly  be  placed  under  any  general  rule  where  error 
may  be  assigned  by  one  who  has  not  joined  issue  in  such  a 
mode  as  would  ordinarily  entitle  him  to  relief.1  As  an  illustra- 
tion of  the  character  of  the  cases  of  which  we  are  speaking 
may  be  taken  one  wherein  the  trial  court  proceeds  upon  an  er- 
roneous theory  which  is  carried  to  a  judgment  affecting  the  in- 
terests of  all  of  the  parties  to  the  suit  or  action.  In  such  a 
case  the  whole  judgment  or  decree  must  be  reversed  in  order 
that  complete  justice  may  be  done.  But  such  cases  are  very 
rare,  and  there  should  be  very  strong  reason  for  creating  excep- 
tions to  the  general  rule.  It  is  very  seldom,  indeed,  that  a  case 
can  arise  in  which  a  judgment  will  be  disturbed  where  the  ques- 
tion was  not  definitely  and  appropriately  made  in  the  trial 
court,  and  hence  it  is  never  safe  in  practice  to  depart  from  set- 
tled principles. 

§  488.  Criminal  Cases — Very  much  the  same  rule  governs  the 
subject  of  making  objections  for  the  first  time  on  appeal  in 
criminal  cases  as  that  which  prevails  in  ordinary  civil  actions. 
As  criminal  cases  and  civil  actions  are  controlled  by  the  same 
general  principle  it  is  not  illogical  or  unnatural  to  speak  in  this 
place  of  the  rule  which  obtains  in  criminal  cases.  The  general 
rule  in  such  cases  is  that  an  indictment  or  information  which 
wholly  fails  to  charge  a  public  offense  may  be  originally  assailed 
on  appeal.2     This  rule  is  obviously  just,  since  it  would  be  de- 

ings  must  be  presented  in  due  season,  2  Hilt.  389;   Pope  v.  Dinsmore,  8  Abb. 

for  the  question  is  not  whether  a  plead-  Pr.  R.  429. 

ing    is    sufficient    or     insufficient    but  l  Whipperman     v.    Dunn,    124    Ind. 

whether  there  is  evidence  which  will  349.     See,  also,  State  v.  Templin,   122 

warrant   a    rinding  or    verdict.     There  Ind.    235.      This    ruling    in    the    case 

are  New  York  cases  holding  that  al-  cited  may  be  sustained  upon  the  ground 

though  there  is  a  bad  pleading,  unob-  that    the    opening    of  the    controversy 

jected  to,  still  judgment  may  be  given  renders    it    necessary  to   open  it  as  to 

upon  the  evidence.     Some  of  the  cases  all,  but  the  doctrine  is,  at  best,  one  to 

carry  the  doctrine   farther   than  it  can  be  limited  rather  than  extended,  since 

justly  be   carried  under  our  system  of  its  extension  would  result  in  confusion 

procedure.     Wright  v.   Hooker,   10  N.  detrimental  to  the  proper  administra- 

\.  51,  59;   Meyer  t'.  Fiegel,  34  How.  Pr.  tion  of  justice. 

R.  434;   Lounsbury  v.  Purdy,  18  N.  Y.  3  Henderson    v.   State,  60    Ind.    296; 

515,  521;   Emery  v.  Pease,  20  N.  Y.  62,  O'Brien   v.  State,  63  Ind.  242;   Arbin- 

64;    Winterson  v.  Eighth  Ave.  R.  Co.,  trode  v.  State,  67  Ind.  267.     It  is  very 


108 


APPELLATE   PROCEDURE. 


structive  of  principle  to  hold  that  a  conviction  of  a  criminal 
offense  can  be  sustained  without  an  indictment  or  information. 
It  is,  however,  to  be  borne  in  mind  that  it  is  true  in  criminal 
cases  as  it  is  in  civil  actions,  that  an  assault  first  made  by  the 
assignment  of  errors  does  not  always  serve  the  purpose  of  a 
motion  to  quash,  for  defects  may  be  reached  by  a  motion  of 
that  kind  that  will  not  avail  on  an  original  attack  in  the  appel- 
late tribunal.  Thus,  an  objection  that  an  information  or  in* 
dictment  is  uncertain  may  avail  on  a  motion  to  quash  and  yet 
be  without  avail  where  the  first  attack  is  made  by  a  specifica- 
tion in  the  assignment  of  errors.1  It  is,  indeed,  true  that  de- 
fects available  on  a  motion  to  quash  are  not  always  available  on 
a  motion  in  arrest  of  judgment.2  Analogous  to  the  rule  which 
prevails  respecting  complaints  is  the  general  rule  respecting 
original  attacks  upon  indictments  in  the  assignment  of  errors, 
for  that  rule  is  that  the  attack  will  fail  if  there  is  one  valid 
count  sustaining  the  judgment,  although  there  may  be  many  bad 
ones.     The  rule  upon  this  subject  is  similar  to  that  which  runs 


doubtful  whether  these  cases  do  not 
carry  the  doctrine  too  far,  for  they  hold 
that  the  accused  may  present  the  ques- 
tion on  appeal  although  he  pleaded 
guilty  in  the  trial  court.  In  civil  cases 
a  confession  would  preclude  an  attack 
on  appeal,  and  it  is  not  easy  to  perceive 
why  it  should  not  do  so  in  criminal 
cases,  except,  perhaps,  where  there  is 
no  statute  upon  the  subject,  or  no  at- 
tempt to  define  an  offense  of  the  kind 
sought  to  be  charged.  The  case  of 
Hays  v .  State,  77  Ind.  450,  goes  even 
further,  and  its  soundness  may  well  be 
doubted.  In  suggesting  these  doubts, 
we  do  not  mean  to  question  the  sound- 
ness of  the  rule  that  where  no  offense 
is  charged  and  there  is  no  plea  of  guilty, 
the  indictment  may  be  challenged  on 
appeal.  It  seems  to  us  that  the  decis- 
ion in  Mayer  v.  State,  4S  Ind.  122,  is  a 
correct  expression  of  the  law.  The 
cases  first  named  certainly  L,ro  much  be- 
yond   the    earlier    cases.     In    Daily    v, 


State,  10  Ind.  536,  the  question  was  not 
fully  considered,  and  only  a  vague  state- 
ment of  the  general  rule  was  made.  In 
Reams  v.  State,  23  Ind.  m,  it  was  cor- 
rectly held  that  the  question  of  jurisdic- 
tion of  the  subject  may  be  made  on  ap- 
peal. Greer  v.  State,  50  Ind.  267,  does 
not  touch  the  question. 

1  Stewart  v.  State,  113  Ind.  505.  See, 
generally,  Lawrence  v.  Monroe.  43 
Kan.  125,  S.  C.  10  Law.  Rep.  Anno.  520. 

2  Nichols  v.  State,  127  Ind.  406;  Grae- 
ter  v.  State,  105  Ind.  271;  Greenley  v. 
State.  60  Ind.  141;  Lowe  v.  State,  46 
Ind.  305;  Shepherd  v.  State,  64  Ind.  43; 
Bright  v.  State,  90  Ind.  343,  578;  Trout 
v.  State,  107  Ind.  5S0;  Rubush  v.  State, 
112  Ind.  107,  113;  Hoover  v.  State,  no 
Ind.  349;  State  v.  Nowland,  29  Ind.  212. 
216.  The  reason  for  the  rule  is  admir- 
ably stated  by  Frazier,  J.,  in  the  case 
last  cited.  What  is  there  so  well  said 
applies  with  even  greater  force  to  an 
attack  made  for  the  first  time  on  appeal. 


(QUESTIONS  FIRST  MADE  ON  APPEAL.  409 

throughout  the  whole  system  of  procedure  ;  the  objection  must 
be  made  to  separate  pleadings,  whether  represented  by  counts 
or  by  paragraphs,  distributively,  for  a  general  attack  will  fail 
if  one  or  more1  counts,  or  paragraphs,  be  sufficient  to  support 
the  judgment.  It  is,  to  repeat,  in  substance,  what  has  been 
elsewhere  said,  always  safer  to  attack  in  detail,  for  joint  attacks 
are  often  perilous. 

1  It  is  well  settled  that  where  there  is  87  Ind.  398;    Bryant  v.  State,  106  Ind. 

one  good  count  in  an  indictment  a  mo-  549;    Casily  v.  State,  32  Ind.  62;  State 

tion  to  quash  addressed  to  the  pleading  v.  Staker,  3  Ind.  570:  .THikes.  v .  State,  II 

as  an  entirety  will  fail.     Dantz  v.  State,  Ind.  557. 


CHAPTER  XXIV. 


HOLDING  PARTIES  TO  TRIAL  COURT    THEORIES. 


The  cardinal  principle.  §  497. 

Adherence  to  theory.  498. 

491.  Illustrative  cases. 

492.  Instances  of  the  application  of 

the  general  doctrine.  500. 

493.  The  rule  as  applied  to  cases  in-         501. 

volving    constitutional     ques- 
tions. 502. 

494.  The  theory  as  outlined  by  the 

pleadings.  503. 

49 v    Requiring     adherence     to     the 

opening  statement. 
496.    The  doctrine  of  election. 


Limitations  of  the  rule. 

Exceptions  to  the  rule. 

The   rule   as  affecting  juristic 
tional  questions. 

Special  cases. 

Nature  of  jurisdictional  ques- 
tions. 

Original  objections  to  jurisdic- 
tion. 

Jurisdiction  of  the  subject  not 
the  same  thing  as  jurisdiction 
of  the  particular  case. 


§  489.  The  Cardinal  Principle — The  cardinal  principle  of  ap- 
pellate procedure  which  requires  that  questions  of  which  a  re- 
view is  sought  shall  first  be  appropriately  brought  before  the 
trial  court  for  decision,  makes  it  indispensably  necessary  that 
positions  should  not  be  shifted  on  appeal,  for,  if  parties  were 
allowed  to  change  positions,  the  appellate  tribunal  would  often 
be  compelled  to  decide  questions  as  purely  original  ones,  and 
this,  certainly,  is  not  the  purpose  for  which  they  were  created. 
It  is,  therefore,  with  reason  held  that  parties  must  stand  by  the 
positions  assumed  in  the  trial  court  and  upon  which  they  asked 
and  obtained  rulings.  The  same  rulings  are  to  be  reviewed 
and  not  different  ones.1  It  may  be  true  that  in  some  instances 
parties  are  not  bound  to  abide  by  their  positions  in  minute  de- 
tail, but  they  are,  at  all  events,  required  to  abide  by  the  general 
positions  upon  which  they  planted  themselves  in  the  trial  court. 

1  As  illustrative  of  this  principle  may  29;  Railroad  w.Gibbes,  24  So.  Car.  60,  75. 

Iduced  those  cases  which  hold  that  It  has  been  held  by  our  own  court  that 

ions  can  not  be  decided  in  advance  questions  will  not  be  considered  on  ap- 

for  the  reason  that  an  appellate  tribunal  peal,   although   parties  agree  that   they 

only  reviews  decisions  made  by  an  in-  shall  he  considered.     Whitman:'.  Wel- 

ferior  tribunal.  Fisk  v.  Henarie,  14  Ore.  lcr,  39  Ind.  515. 

(410) 


HOLDING  TO  TRIAL  COURT  THEORIES.  4H 

§  490.  Adherence  to  Theory— The  strong  current  of  authority 
carries  the  general  principle  stated  to  its  logical  conclusion,  for 
the  courts  are  well  agreed  upon  the  doctrine  that  the  theory 
acted  upon  in  the  lower  court  must  be  adhered  to  in  the  higher.1 
The  rule  that  the  theory  acted  upon  in  the  trial  court  must  be 
adhered  to  upon  appeal  finds  expression  in  various  forms,  but 
the  meaning  conveyed,  whatever  the  form  of  words  employed 
may  be,  is  essentially  the  same.  Some  of  the  courts  express 
the  rule  by  saying  that  new  issues  can  not  be  made  on  appeal,2 
others  give  it  expression  by  saying  that  there  can  be  no  change 
of  base  on  appeal,3  and  others  by  some  such  expression  as  that 
the  matter  was  not  contested  below  and  it  can  not  be  contested 
above.4 

§  491.  Illustrative  Cases — The  principle  of  appellate  practice 
requiring  adherence  to  the  theory  assumed  in  the  lower  court 
is  illustrated  in  many  cases,  but  in  all  the  principle  is  adhered 
to  with  undeviating  steadiness.  It  seems  hardly  necessary  or 
profitable  to  refer  to  particular  instances  for  the  sole  purpose 
of  establishing  the  existence  of  a  rule  so  evidently  just  and  so 
essential  to  the  fair  and  orderly  administration  of  justice,  but  it 
is  necessary  and  profitable  to  refer  to  some  of  those  instances 
for  the  purpose  of  exhibiting  the  practical  effect  and  operation 


1  Lake  Erie,  etc.,  R.Co.  v.  Acres,  108  t  3  As  Judge  Dillon  says,  "  He  can  not 
Ind.  548;  Graham  v.  Nowlin,  54  Ind.  change  his  base  after  an  appeal."  Gar- 
389;  Carver  v.  Carver,  97  Ind.  497;  land  v.  Wholebau,  20  Iowa,  271;  Lav- 
Brink  v.  Reid,  122  Ind.  257;  Feder  v .  erty  v.  Woodward,  16  Iowa,  1.  Vide, 
Field,  117  Ind.  386,  S.  C.  20  N.  E.  Rep.  also,  Barlow  v.  Brock,  25  Iowa,  308; 
129;  Manifold  v.  Jones,  117  Ind.  212,  S.  Bishop  v.  Carter,  29  Iowa,  165;  Rob- 
C.  20  N.  E.  Rep.  124;  Bull  v.  Coe,  77  inson  v.  Keith,  25  Iowa,  321;  Coonrod 
Cal.  54;  Trigg  v.  Taylor,  27  Mo.  245;  v.  Benson,  2  Greene  (Iowa),  179. 
Capital  Bank  v.  Armstrong,  62  Mo.  59;  *  Bouknight  v.  Brown,  16  So.  Car.  155, 
Walker  v.  Owen,  79  Mo.  563;  Wheeler  165.  See,  generally,  Lawrence  f.Gram- 
v.  American  Central  Ins.  Co.,  6  Mo.  bling,  13  So.  Car.  120;  Chamble  v.  Trib- 
App.  235.  ble,  16  So.  Car.  165;  Hickenbottom  v. 

2  O'Leary  v.  Iskey,  12  Neb.  136;  Delaware,  etc.,  Co.,  122  N.Y.  91;  Crip- 
Ophir,etc,  Co.  v.  Carpenter,  6  Nev.  393;  pen  7;.  Morss,  49  N.Y.  63;  Platner  v. 
St.  Louis  Brokerage  Co.  v.  Bagnell,  76  Platner,  78  N.  Y.90;  Egan  v.  Menard, 
Mo. 554;  Blackwellf.  Smith.SMo.  App.  ^2  Minn.  273;  Brown  v.  Minneapolis, 
43;  King  v.  Rea,  13  Col.  69;  Jennings  etc.,  Co.,  25  Minn.  461;  Spencer  v.  Lev- 
v.  Bank,  13  Col.  417.  ering,  S  Minn.  461. 


|1 -J  APPELLATE   PROCEDURE. 

of  the  rule,  since  an  abstract  statement  of  a  rule  falls  far  short 
of  conveying  a  just  conception  of  its  practical  effect  and  impor- 
tance. Such  a  conception  only  concrete  examples  can  forcibly 
and  clearly  convey.  The  practical  working  of  the  rule  in  one 
of  its  phases  is  well  illustrated  by  the  cases  wherein  it  is  held 
that  if  parties  voluntarily  try  a  case  upon  the  theory  that  it  is 
a  suit  in  equity,  and  not  an  action  at  law,  they  must  abide  by 
their  theory  in  the  higher  court.1  The  obverse  of  this  doctrine 
is  exhibited  in  the  cases  which  declare  that  a  party  who  sub- 
mits without  objection  to  a  trial  of  his  case  by  the  court  can  not 
successfully  claim  on  appeal  that  he  was  entitled  to  a  jury  trial.2 
To  the  general  class  of  which  the  cases  referred  to  are  types 
belongs  the  case  wherein  it  was  held  that  an  objection  that  an 
account  should  have  been  referred  to  a  master  comes  too  late 
on  appeal.3  Exhibiting  another  phase  of  the  general  principle 
is  the  case  which  decides  that  an  objection  to  the  validity  of  a 
rule  of  court  can  not  be  first  urged  in  the  appellate  court.4  Still 
another  phase  of  the  principle  appears  in  the  case  which  ad- 
judges that  a  party  who  has  treated  a  contract  as  valid  in  the 
trial  court  can  not  impeach  it  on  appeal  for  illegality.5  So,  it 
may  be  said  of  cases  wherein  a  party  is  held  to  the  construc- 
tion of  a  contract  insisted  upon  by  him  in  the  trial  court,  that 
they  present  peculiar  phases  of  the  subject  and  illustrate  the 
rule."  In  another  case  the  rule  was  so  applied  as  to  preclude  a 
party,  who  acted  upon  the  theory  in  the  trial  court  that  a  deed 


1  Farmer's   Bank   v.   Butterfield,   ioo  plaint  did  not  state  facts  showing  such 

Ind.229;  Ikerd  v.  Beavers,  106  Ind..^;  a  trespass. 

Jarboe  v.  Severin,  112  Ind.  572;  Crabs  2  Brown   v.   Home    Savings  Bank,   5 

v.  Mickle,  5  Ind.  145;    Wallace  v.  Har-  Mo.  App.i;  Adams  County  v.  Hunter, 

ris,  32  Mich.  3S0;   Dunbar  v.  Locke,  62  7S  la.  32S,  43  N.  W.  Rep.  20S. 

\".  11.  442.    See,  also,  Davidson  v.  Mor-  3  Whittemore  v.  Fisher  (111.),  24  N. 

rison.   B6    Ky.  397,   5   S.    W.  Rep.  S71;  E.  Rep.  636. 

Reynes  v.  Dumont,  130  U.  S.  354.     In  *  Bomar  v.  Asheville,  etc.,  Co.,  30  So. 

ise  of  Harrison    v.   Brooklyn,  etc.,  Car.  450.  S.  C.  9  S.  E.  Rep.  512. 

Co.,  100  N.  Y.621,  the  defendant  asked  5  Russell  v.  Rosenbaum,  24  Xeb.  769, 

judgment   in   the  trial  court  upon   the  S.  C.  40  X.  W.  Rep.  2S7. 

ground  that  the  complaint  stated  facts  6  Metzler  v.  James,  12  Col.  322, 19  Pac. 

showing  an  actionable  trespass,  and  it  Rep.  8S5;  Barrett  v.  Fisch,  76    la.  553, 

was    held  on  appeal   that   he  was  con-  41  X.  W.  Rep.  310. 
i    from    insisting   that    the    com- 


HOLDING  TO  TRIAL  COURT  THEORIES. 


4i3 


entitled  him  to  the  land  described  in  it,  from  recovering  mon-v 
paid  out  by  him.1 

§  492.   Instances  of  the  Application  of  the  General  Doctrine-  it 

would  be  a  departure  from  the  principle  we  are  considering  to 
permit  parties  to  treat  a  case  in  the  trial  court  as  an  agreed 
case,  upon  that  theory  secure  a  decision,  and,  on  appeal,  allow 
them  to  wage  a  contest  upon  a  different  theory,  so  that  the  cases 
which  hold  them  to  the  original  theory  are  based  upon  sound 
principle.2  To  the  same  general  class  are  referable  the  numer 
ous  cases  which  hold  that  questions  exclusively  concerning  the 
making  or  the  failure  to  make  parties  can  not  be  first  raised  on 
appeal.3  In  harmony  with  the  cases  to  which  reference  has 
been  made  are  the  cases  which  hold  that  where  a  party  sues  in 
contract  when  he  should  have  sued  in  tort,  he  must  stand  to  his 
original  theory  in  the  higher  court.1  Upon  the  same  principle 
it  is  held  that  a  party  who  affirms  the  validity  of  a  contract  in 


1  Downard  v.  Hadley,  u6Ind.  131,  18 
N.  E.  Rep.  457.  See,  generally,  Spick- 
erman  v.  McChesney,  111  N.  Y.  686, 19 
N.  E.  Rep.  266;  Fry  v.  State,  81  Ga.  645, 
8  S.  E.  Rep.  308;  Withers  v.  Jack,  79  Cal. 
21  Pac.  Rep.  824;  Myers  v.  Cron,  113 
N.  Y.  60S,  21  N.  E.  Rep.  9S4;  Black  v. 
Washington,  65  Miss.  60,  3  So.  Rep. 
140;  Lackey  v.  Pearson,  101  N.  C.  651, 
8  S.  E.  Rep.  121;  Knowles  v.  State,  27 
Texas  App.  503,  11  S.  W.  Rep.  522; 
Schriber  v.  Richmond,  73  Wis.  5,  40  N. 
W.  Rep.  644;  Eaton  v.  Rocca,  75  Cal. 
93, 16  Pac.  Rep.  529;  Hamilton  v.  Ames, 
74  Mich.  29S,  41  X.W.  Rep.  930;  Devec- 
mon  v.  Shaw,  70  Md.  219,  16  Atl.  Rep. 
645;  Dorr  v.  Rohr,  S2  Va.  359,  S.  C.  3 
Am.  St.  Rep.  106. 

2  Barr  v.  Hannibal,  etc.,  Co.,  30  Mo. 
App.  248;  Booth  v.  Cottingham,  126 
Ind.  431,  26  X.  E.  Rep.  84. 

3  La  Crosse  v.  Melrose,  22  Wis.  459; 
Truman  v.  McCollum,  20  Wis.  360; 
Collins  v.  Lightle.  50  Ark.  97,  6  S.  W. 
Rep.  596;  Great  Western,  etc.,  Co.  v. 
Woodmas,  etc..  Co.,  12  Col.  46,  20  Pac. 


Rep.  771;  Bragg  v.  Olson,  128  111.  540, 
21  N.  E.  Rep.  519;  Alexander  v.  Steele, 
S4  Ala.  332,  4  So.  Rep.  2S1;  Towell  v. 
Hollweg,  Si  Ind.  154;  Reederr.  Maran 
da,  66  Ind.  485;  Pate  v.  First  Nationa". 
Bank,  63  Ind.  254;  Groves  V.  Ruby.  24 
Ind.  418.  The  rule  in  this  State  is  that 
defect  of  parties  is  waived  if  not  oppor- 
tunely presented  by  answer  or  demur 
rer.  Atkinson  v.  Mott.  102  Ind.  431; 
Mobley  f.  Slonaker,  48  Ind.  256;  Shore 
v.  Taylor,  46  Ind.  345.  The  demurrer 
must  assign  the  proper  cause  or  it  will 
not  present  the  question.  Wright  v, 
Jordan,  71  Ind.  1;  Cleaveland  v.  Vajen, 
76  Ind.  146;  Giles  v.  Canary,  99  Ind. 
116.  If  a  party  fails  to  object  to  the 
validity  of  a  contract  voidable  undet 
the  statute  of  frauds  he  can  not  suc- 
cessfullv  urge  the  objection  on  appeal. 
Hodges  v.  Rowing,  5S  Conn.  12,  7  Law 
Rep.  Anno.  S7. 

*  Samuels  v.  Blanchard,  25  Wis.  329; 
Salisbury  v.  Howe.  S7  N.  Y.  12S;  Lock- 
wood  v.  Quackenbush,  83  N.  Y.  607. 


414 


APPELLATE  PROCEDURE 


the  trial  court  must  proceed  upon  that  theory  throughout  the 
litigation  in  the  appellate  tribunal.1  So,  where  a  party  pleads  a 
judgment  simply  as  an  estoppel,  he  will  not  be  heard  on  appeal 
to  assert  that  it  is  a  counter-claim.2  Asking  instructions  upon 
one  definite  and  designated  theory  precludes  the  party  from 
assuming  a  different  one.3  The  Court  of  Appeals  of  New  York 
has  carried  the  general  doctrine  very  far,  for  it  has  held  that  the 
question  as  to  the  constitutionality  of  a  law  can  not  be  made 
for  the  first  time  in  that  court.1 


§  493  The  Rule  as  applied  to  Cases  involving  Constitutional 
Questions — The  rule  as  extended  by  the  Court  of  Appeals  of 
New  York  in  the  cases  referred  to  may  be  made  to  operate  op- 
pressively, and,  in  order  to  prevent  this  result,  it  should  be 
held  to   apply  only   where   the   pleadings   or   proceedings  ex- 


1  Ross  v.  Citizens'  Insurance  Co.,  7 
Mo.  App.  575.  See,  upon  the  general 
question,  Nance  v.  Metcalfe,  19  Mo. 
App.  183;  Corn  v.  City  of  Cameron,  19 
Mo.  App.  573;  Wright  v.  Sanderson,  20 
Mo  App.  534;  Fell  v.  Rich  Hill  Coal 
Mining  Co.,  23  Mo.  App.  216. 

2  McGill  v.  Wallace.  22  Mo.  675. 
See  Cooper  v.  City  of  Bi^  Rapids,  67 
Mich.  607,  for  an  example  of  an  unsuc- 
cessful attempt  to  shift  positions. 

3  Louisville,  etc.,  Co.  v.  Wood,  113 
Ind.  544,  564;  Doty  v.  Gillett,  43  Mich. 
203. 

4  Deleaney  v.  Brett.  51  N.Y.  78;  Vose 
v.  Cockcroft,  44  N.  Y.  415.  In  the  case 
last  named  the  court  cited  Lee  v.  Til- 
lotson,  24  Wend.  337;  Van  Hook  v. 
Whitlock,  20  Wend.  43;  I  Ionian  v. 
Brinckerhof,  1  Denio,  184;  Caldwell  v. 
Colgate,  7  Barb.  253.  Earle,  J.,  said: 
'•It  would  bexniite extraordinary  it",  un- 
der our  system  of  pleading,  with  such  an 
answer,  the  defendants  were  permitted 
to  show,  as  a  defer.se  that  the  bond  given 
in  proceedings  under  a  statute  which 
was  unconstitutional  and  void."  In 
Delanev  v  Brett,  supra  it  was  said  by 
the  court  that,  "  The  Court  ot  Appeals  is 


strictly  an  appellate  tribunal,"  and  it 
was  also  said  that:  "A  review  of  a 
question  contemplates  and  involves  a 
previous  consideration  and  examina- 
tion, and  its  actual  determination  im- 
plies not  only  that  it  lias  been  consid- 
ered and  examined,  but  that  it  has  in 
fact  been  decided  ami  determined. 
This  view  was  taken  by  the  Court  of 
Appeals  of  the  above  provisions  of  the 
code  soon  after  its  adoption,  in  Lake 
v.  Gibson  (2  Corns.  188)."  There  are 
many  analogous  cases  in  the  New  York 
reports  and  we  cite  a  few  of  them: 
Coates  v.  First  National  Bank  of  Em- 
poria, 91  N.  Y.  20,  31;  Powell  v. 
Waldron,  89  N.  Y.  328;  Clarke  V.  Saw- 
yer, 2  N.Y.  498;  Truscott  v.  King,  6 
N.  Y.  147;  Fitch  v.  Rathbun,  61  N.  Y. 
579;  Brookman  v.  Ilamill,  43  N.  Y. 
554;  Jordan  v.  National  Shoe,  etc., 
Bank,  74  \.  Y.  467;  Muldoon  v.  Black- 
well,  84  N.  Y.  646.  Upon  the  question 
toppel  we  have  in  our  own  reports 
a  decision  closely  resembling  that  made 
in  Yose  v.  Cockcroft,  supra.  Cover- 
dale  v.  Alexander,  82  Ind.  503.  See, 
also.  McFadden  v.  Fritz,  no  Ind.  1. 


HOLDING  TO  TRIAL  COURT  THEORIES.  415 

pressly  or  by  clear  implication  concede  the  constitutionality  of 
the  statute.  If  the  course  pursued  is  such  as  to  estop  the  party, 
then,  clearly  enough  he  should  be  required  to  abide  by  his 
position  in  the  trial  court ;  but  if  there  is  no  estoppel  and  the 
question  of  the  validity  of  the  statute  arises  incidentally,  or  as 
a  mere  matter  of  detail  fairly  comprehended  under  the  general 
line  of  action  pursued  by  the  party,  it  should  not  be  held  that 
he  is  concluded,  nor  should  he  be  held  to  be  concluded  where 
the  question  of  the  competency  of  the  court  to  act  at  all  in  the 
case  depends  upon  the  validity  of  the  legislative  enactment. 
If  there  is  no  jurisdiction  without  a  valid  statute,  then,  it  must 
follow  that  the  question  can  not  be  foreclosed  by  waiver,  or 
even  by  consent,  since  a  court  can  not  be  made  competent  by 
the  acts  of  the  parties,  or,  which  is  the  same  thing,  can  not  be 
invested  with  jurisdiction  of  the  subject  save  by  law.  The 
doctrine  that  a  party  may  estop  himself  from  questioning  the 
constitutionality  of  a  statute  is  a  settled  one,1  and  it  is  not  here 
questioned,  nor  is  it  encroached  upon  by  holding  that  where 
jurisdiction  of  the  subject  is  wholly  dependent  upon  statute  an 
estoppel  can  not  so  operate  as  to  create  an  authority  that  can 
come  only  from  the  law-making  power. 

§  494.  The  Theory  as  Outlined  by  the  Pleadings — The  principal 
theory  is  that  outlined  by  the  pleadings,  and  the  familiar 
rule  is  that  parties  must  keep  within  the  issues  made  by  the 
pleadings.  It  is  clear  that  a  party  can  not  successfully  change 
his  theory  on  appeal  where  it  is  embodied  or  outlined  in  the 
pleadings  upon  which  the  issues  were  framed.  It  is  held  that 
if  the  parties  put  a  definite  construction  upon  the  pleadings  in 
the  trial  court  and  induce  the  court  to  act  upon  that  construction 
they  must  adhere   to  it  on  appeal.2     It  is  often  declared  that 


1  Daniels  v.  Tearney,   102  U.  S.  415,  that  even  where  life  is  at  stake  consti- 

Perryman  v.   Greenville,  51    Ala.   507;  tutional  rights  may  be  waived.     Butler 

Burlington,  etc.,  Co.  v.  Stewart,  39  la.  v.  State,  97  Ind.  378;     United  States  v. 

267;    People    v.   Murray,  5    Hill,  46S;  Sacramento,  2  Mont.  239,  S.C.25  Am. 

State    v.    Mitchell,    31    Ohio    St.    592;  Rep.  742. 

Ferguson  v.  Landram,   1   Bush,  548,  S  2  San  Diego,  etc.,  Co.  v.  Neale,  SS  Cal. 

C.  5  Bush,  230.     It  is  quite  well  settled  50,  11  Lawyer's  Rep.  Anno.  604. 


4]6  APPELLATE  PROCEDURE. 

pleadings  will  be  treated  on  appeal   as  the   parties  elected  to 
treat  them  in  the  trial  court.1 

§  495.  Requiring  adherence  to  the  Opening  Statement — A  case 
decided  by  the  Supreme  Court  of  the  United  States2  furnishes 
a  striking  illustration  of  the  doctrine  which  we  are  discussing, 
and  proves  the  necessity  for  care  in  assuming  positions  in  the 
court  of  original  jurisdiction.  In  the  case  referred  to  counsel 
in  opening  the  case  to  the  jury  stated  facts  showing  that  the 
contract  his  client  was  seeking  to  enforce  was  an  illegal  one, 
the  trial  court  instructed  that  there  could  be  no  recovery  and 
the  Supreme  Court  approved  its  ruling.3  It  is,  we  may  say  in 
concluding  our  consideration  of  this  phase  of  the  subject,  of 
very  great  importance  to  assume  positions  in  the  trial  court  that 
will  admit  of  the  presentation  to  the  appellate  tribunal  of  all 
the  questions  of  law  fairly  within  the  scope  of  the  facts.4 

§  496.  The  doctrine  of  Election— The  rule  under  discussion  is 
no  more  than  an  application  of  the  familiar  doctrine  of  elec- 
tion which  has  its  foundation  in  the  old  adage  that  "  a  man  can 
not  blow  both  hot  and  cold,"  and  hence  there  is  nothing  novel 
in  it.6     The  rule  is  one  required  by  logic  and  by  practical  con- 

1  Daniels  v.  Brodie,  54  Ark.  216,  11  Pleasants  v.  Fant,  22  Wall.  116;  Rail- 
Law.  Rep.  Anno.  81;  Barndt  v.  Fred-  road  Co.  v.  Fraloff,  100  U.  S.  24,  26. 
erick,  78  Wis.  1,  11  Law.  Rep.  Anno.  *  In  the  case  of  Wing  v.  De  La  Ri- 
199.  202.  We  have  many  cases  in  our  onda,  125  N.Y.  67S,  25  N.  E.  Rep.  1064, 
own  reports  which  declare  that  plead-  1067,  the  Court  of  Appeals  of  New  York 
ings  must  outline  a  definite  theory,  and  said:  "This  shows  the  theory  upon 
that  to  the  theory  adopted  the  pleader  which  the  case  was  tried  and  probably 
will  be  held.  Toledo,  etc.,  Co.  v.  Levy,  why  none  of  the  facts  were  shown  ren- 
127  Ind.  16S;  Shew  v.  Hews,  126  Ind.  dering  the  leases  invalid.  It  is  quite  too 
474;  Bingham  v.  Stage,  123  Ind.  2S1;  late  now  to  abandon  the  theory  of  the 
Wagner  v.  Winton,  122  Ind.  57;  May  v.  trial  upon  which  the  leases  were  put  in 
Reed,  125  Ind.  199;  Pearson  v.  Pearson,  evidence,and  to  take  ground  which  is  di- 
[25  Ind.  341 ;  Horn  v.  Indianapolis,  etc.,  rectly  opposite  to  that  theory,  and  to  the 
Bank,  125  Ind.  381,  3S5;  Mescall  v.  request  to  find,  made  by  the  defendant, 
Tully,  91  Ind.  96,  and  cases  cited.  even  though  such  request  was,   in  its 

2  Oscanyanr.ArmsCo.,ri03U.S.26v.  entirety,  refused.     We  must  still  pro- 

3  The  case  cited  above  contains  a  val-  ceed  upon  the  theory  of  the  invalidity 
uable  collection  of  authorities  upon  the  of  the  leases  assumed  upon  the  trial." 
question  of  the  right  of  the  court  to  di-         5  Amplified  the  maxim  is.  "  He  is  not 
rect  a  verdict,  among  them  Merchant's  to  be  heard  who  alleges  things  contra- 
Bank    v.    State    Bank,     10  Wall.    604;  dictory  to  each  other." 


HOLDING  TO  TRIAL  COURT  THEORIES.  417 

siderations,  since,  without  it,  inconsistent  positions  might  be  as- 
sumed without  an}-  other  restriction  than  that  of  the  party's 
pleasure.  But  it  is  something  more  than  a  mere  logical  rule 
for  securing  consistency,  inasmuch  as  its  principal  purpose  is  to 
prevent  deception,  since,  without  it,  parties  might  mislead  their 
adversaries  by  assuming  one  position,  in  the  trial  court  and  an- 
other on  appeal.  Nor  could  there  be  an  orderly  administration 
of  justice  without  such  a  rule.  It  does  not,  therefore,  rest  solely 
upon  the  principle  that  only  questions  once  decided  can  be  re- 
viewed on  appeal,  although  that  principle  gives  it  strong  sup- 
port.1 

§  497.  Limitations  of  the  Rule — It  would  be  a  perversion  of  the 
rule  requiring  parties  to  abide  by  the  theories  acted  upon  in  the 
trial  court  to  hold  that  additional  arguments  or  authorities  can 
not  be  adduced  on  appeal.  Such  a  holding  would  produce 
oppression  and  injustice  and  the  rule  authorizes  no  such  result. 
Within  the  scope  of  the  theory  fairly  and  distinctly  outlined  in 
the  trial  court  a  party  may  bring  to  his  aid  all  the  arguments 
and  authorities  he  can  command.  All  that  the  rule  demands 
is  that  no  new  general  position  and  no  new  and  independent 
issue  shall  be  presented  on  appeal,  so  that  as  long  as  the  party 
confines  himself  to  the  general  questions  which  he  presented 
to  the  trial  court  for  decision  he  can  not  be  regarded  as  trans- 
gressing the  rule,  but  while  this  is  true  it  is  also  true  that  no 
new  questions  (that  is,  questions  not  pointed  out  by  the  objec- 
tions made  in  the  trial  court)  can  be  successfully  urged  on 
appeal. 

§  498.  Exceptions  to  the  Rule — It  may  not  be  improper  to  add 
that  the  rule  that  a  party  must  adhere  to  the  theory  adopted  in 
the  trial  court  does  not  preclude  him  from  insisting  on  appeal 
that  the  trial  court  had  no  jurisdiction  of  the  subject,  for  noth- 
ing that  a  party  can  do,  short  of  executing  the  judgment  in 
some  way,  can  deprive  him  of  the  right  of  objecting  to  the  ju- 

1  In  Whitman  v.  Weller,  39  Ind.  515,  peals  are  taken,  and  not  to  decide  ques- 

the  court  said:     "This  court  sits  to  re-  tions  which  are  ^'-esented  here  for  the 

view  legal  questions  which  have  been  first  time."     See  also,  Barnard  v.  Cox, 

•decided  bv  the  courts  from  which  ap-  25  Ind.  251. 

27 


418  APPELLATE  PROCEDURE. 

risdiction.1  The  theory  of  the  law  is  that  where  there  is  an 
absolute  want  of  jurisdiction  there  is  no  court,  and  it  is  too  clear 
for  controversy  that  a  party  can  neither  create  a  court,  nor  en- 
dow it  with  authority  over  a  subject  not  placed  within  its  juris- 
diction bv  law.  The  conclusion  that  the  question  of  jurisdiction 
remains  always  open  is,  it  is  apparent,  implied  in  the  long  and 
well  settled  doctrine  that  consent  can  not  confer  jurisdiction  of 
the  subject.  No  matter,  therefore,  what  theory  a  party  ad' 
varices  he  is  at  liberty  at  any  step  to  make  the  question  of  ju- 
risdiction. He  may  not,  indeed,  make  any  question  on  appeal 
as  to  the  mere  election  or  choice  of  remedies  not  made  below, 
but  he  may  make  the  question  as  to  the  right  to  entertain  juris- 
diction of  the  subject.2 

§  499.  The  Rule  as  affecting  Jurisdictional  Questions — If,  how- 
ever, there  is  general  jurisdiction  of  the  subject  although  in- 
complete or  defective,  the  question  of  want  of  jurisdiction  can 
not  be  first  made  on  appeal.  Thus,  where  a  complaint  con- 
tains two  paragraphs,  and  the  court  has  jurisdiction  of  one  and 
not  of  the  other,  the  question  must  be  presented  to  the  trial 
court.3  The  presence  of  authority  to  proceed  is  jurisdiction 
over  the  subject,4  and  where  there  is  jurisdiction,  questions  af- 
fecting only  the  mode  of  its  acquisition  and  exercise  must,  as  a 
general  rule,  be  made  in  the  trial  court,  so  that  they  can  be  ap- 
propriately presented  to  the  appellate  court  for  review.  When 
once  acquired,  jurisdiction  continues,  as  a  general  rule,  and  is 

1  Schuylkill  County  v.  Boyer,  125  Pa.  risdiction  of  particular  instances.  Jack- 
St.  226;  Metcalf  v.  Watertown,  12S  U.  son  v.  Smith,  120  Ind.  520,  22  N.  E. 
S.  5S6;  Cameron  v.  Hodges,  127  U.  S.  Rep. 431;  Rabun  County  v.  Habersham 
322;  Hegler  v.  Faulkner,  127  U.  S.  482;  County,  79  Ga.  248;  Quimby  v.  Boyd, 
Boys  v.  Simmons,   72   Ind.   593;   State  128  U.  S.  488. 

:      Whitewater,    etc.,    Co.,  8  Ind.  320;  3  Louisville,  etc.,  R.  Co.  v.  Fox,  101 

Strosser   v.   City  of  Fort    Wayne,    100  Ind.  416.    But,  on  seasonable  objection, 

Ind.  443;  Webb  v.  Carr,  78  Ind.  455.  evidence   tending  to  prove  a  cause  of 

The  decision  in    Patterson  v.  Scottish,  action  not  within  the  jurisdiction  of  the 

etc.,  Co.,   107  Ind.  497,  is  not  easily  re-  trial   court  should  be    excluded.     Wa- 

concilable  with  principle  or  authority.  bash,  etc.,  Co.  v.  Rooker,  90  Ind.  581. 

2  It  is,  however,  to  be  kept  in  mind  4  Curry  v.  Miller,  42  Ind.  320;  Quarl 
that  there  is   a   distinction   between  ju-  v.  Abbett.  102  Ind.  233. 

risdiction  of  a  general  subject  and  ju- 


HOLDING  TO  TRIAL  COURT  THEORIES.  419 

not  lost  by  subsequent  errors,1  so  that  no  question  of  loss  of 
jurisdiction  can  be  first  made  on  appeal,  if,  indeed,  it  can  be 
successfully  made  at  any  time. 

§  500.  Special  Cases — There  is  a  class  of  cases  which  it  is  not 
easy  to  bring  under  any  general  rule,  but  of  which  it  may  be 
said  that  a  failure  to  object  below  in  an  appropriate  method 
precludes  the  party  from  objecting  on  appeal,  although  the 
question  is  in  the  nature  of  one  of  jurisdiction,  and  relates  to 
the  subject-matter.2  Thus,  if  a  court  has  jurisdiction  in  actions 
of  replevin  only  when  the  property  is  situated  in  the  county, 
the  failure  to  make  the  point  that  the  property  in  dispute  was 
not  within  the  county  would  preclude  the  party  from  making  it 
on  appeal.3  Kindred  cases  will  suggest  themselves  in  which, 
although  the  jurisdiction  of  the  subject-matter  is,  in  some  sense, 
involved,  still,  it  is  not  invloved  in  that  sense  which  entitles  a 
party,  or  the  court  of  its  own  motion,  at  any  stage  of  the  pro- 
ceedings to  make  the  jurisdictional  objection.  The  truth  is 
that  there  is,  as  has  been  suggested,  an  essential  difference  be- 
tween general  jurisdiction  of  the  subject  and  jurisdiction  of  the 

1  Osborn  v.  Sutton.  ioS  Ind.  443;  Albert,  78  Ind.  241;  Robinson  v. 
Stoddard  v.  Johnson,  75  Ind.  20,  34;  Shatzley,  75  Ind.  461.  "But  the  want 
Black  v.  Thomson,  107  Ind.  162.  No  of  jurisdiction  because  the  action  is 
formal  entry  asserting  jurisdiction  is  local,  and  has  been  brought  in  the 
essential.  Cauldwell  v.  Curry,  93  Ind.  wrong  county,  and  the  want  of  jurisdic- 
363;  Platters.  Board,  103  Ind.  360;  Carr  tion  because  the  court  has  no  power 
v.  State,  103  Ind.  548;  Jackson  v.  State,  and  authority  to  adjudicate  upon  the 
104  Ind.  516;  Pickering  v.  State,  106  subject  involved  in  the  action  are  two 
Ind.  228.  very  different  things.     In  the  latter  case 

2  It  is,  perhaps,  hardly  necessary  to  it  was  always  and  necessarily  the  rule 
say  that  jurisdiction  of  the  person  may  of  law  that  consent  of  parties  could  not 
be  waived,  and  that  very  different  rules  confer  jurisdiction  for  the  reason  that 
apply  where  the  question  is  as  to  juris-  in  any  event  the  court  was  not  by  law 
diction  of  the  person  from  those  which  deemed  competent  to  be  intrusted  with 
prevail  where  the  question  relates  to  the  question,  and  therefore  its  proceed- 
the  jurisdiction  of  the  subject,  or  sub-  ings  would  be  coram  non  judice,  and 
ject-matter,  as  it  is  called.  utterlj'  void,  and  the  parties  could  not 

3  This  conclusion  seems  sound  on  by  agreement  give  faculties  to  the  court 
principle  and  is  fairly  supported  by  which  the  law  withheld."  Per  Frazier, 
such  cases  as  Grand  Rapids,  etc.,  Co.  v.  J.,  in  Indianapolis,  etc.,  R.  Co.  v.  Solo- 
Gray,  3S  Mich.  461 ,    Gott  v.  Brigham,  mon,  23  Ind.  534. 

45    Mich.  424.     See,  generallj'.  Cox  v. 


420 


APPELLATE  PROCEDURE. 


subject-matter  of  a  particular  action.1  Thus,  jurisdiction  of  ac- 
tions to  recover  possession  of  real  estate  may  be  possessed  by 
circuit  courts  generally,  and  yet  the  circuit  court  of  Adams 
county  may  not  have  jurisdiction  of  an  action  to  recover  pos- 
session of  a  tract  of  land  in  the  county  of  Wayne.  It  seems 
impossible  to  support  the  cases  which  declare  that  where  an 
action  is  brought  to  recover  land  in  a  court  of  general  jurisdic- 
tion the  presumption  is  that  the  land  is  within  the  territorial 
jurisdiction  of  the  court  in  which  the  action  is  brought,2  with- 
out affirming  that  there  is  a  distinction  between  the  general  ju- 
risdiction of  a  subject  and  jurisdiction  of  the  subject-matter, 
and  yet  these  cases  are  everywhere  regarded  as  sound  law. 
On  the  other  hand,  it  is  well  settled  that  where  the  land  involved 
in  the  particular  case  is  not  within  the  county  where  the  action 
is  brought,  the  action  will  not  lie  because  jurisdiction  does  not 
exist  in  the  particular  instance.3     In   the    class  of  cases   last 


1  Jackson  v.  Smith,  120  Ind.  520.   The 

distinction  mentioned  in  the  text  is  sug- 
I  in  Indianapolis,  etc..  R.  Co.  v. 
Solomon,  23  Ind.  534,  where  it  was 
said:  "But  where  the  court  was  In- 
law competent  to  entertain  the  question 
involved  and  was  only  deprived  of  ju- 
risdiction because  the  action  was  local, 
and  required  to  be  brought  in  another 
county,  it  was  always  held  that  the  ac- 
tion could  he  waived." 

2  Ragan     v.     Ilavnes,    10    Ind.    34S; 
Brownfield  v.  Weicht,  9  Ind.  394;  Wolf 

State,    ii    Ind.    231;     Kinnaman    v. 
Kinnaman,  71  Ind.  417;   Hyatl  :.  Coch- 
ran, 69  Ind.  436;    Godfrey   ?'.  Godfrey, 
17  Ind.  A;  Culph  v.  Philips,  17  Ind. 209; 
n  v.  Anderson,  90  Ind.  93.     These 
are  no   more  than  applications  to 
ific   instances    of   the   general   rule 
that  presumptions  an-  made  in  favor  of 
the     jurisdiction     of     superior    courts. 
Shewalter   v.    Bergman,    123   Ind.  155, 
undry   v.  Board,  115   Ind.  234; 
id  7'.  Leggett,  115  Ind.  544;  Chapell 
1 17  Ind.  481. 
3  New    Albany,  etc.,   Co.   v.  Huff,  19 


Ind.  444;  Vail  v.  Jones,  31  Ind.  467; 
Loeb  v.  Mathis,  37  Ind.  306;  Ham  v. 
Rogers, 6  Blackf.  559;  Sherry  r.Winton, 

1  Ind.  96;  Dumont  v.  Lockwood,  7 
Blackf.  576.  Some  of  the  earlier  cases 
carried  the  doctrine  asserted  in  the 
cases  cited  far  beyond  reason  and  prin- 
ciple and  held  that  a  suit  to  enforce 
specific  performance  of  a  contract  must 
he  brought  in  the  county  in  which  the 
land  in  controversy  is  situated.  Parker 
v.  McAllister,  14  Ind.  12;  Vail  v.  Jones, 
31  Ind.  467.  These  decisions  are  in 
conflict  with  Dehart  v.  Dehart.  15  Ind. 
167;  Coon  v.  Cook.  f>  Ind.  268,  and  are 
completely  overthrown  by  the  later 
case  of  Bethell  v.  Bethell,  <;-  Ind.  31S, 
7,2 2.  They  are  in  conflict  with  the  doc- 
trine declared  centuries  ago  in  the  greal 
case  of  William  Penn  v.  Lord  Balti- 
more, 1  Ves.  Sr.  444.  See,  also, Watkins 
v.  Ilolman,  16  Peters,  25;  Brown  v.  P.  - 
mond,  100  Mass.  267;  Mitchell  v.  Bunch, 

2  Paige,  Ch.  006;  McQuerv  v.  Gilleland 
(Ky.),  1:  S.W.Rep.  1037,  1  Pomeroy  Eq. 
Juris.,  §  135,  1  Work's  Practice,  §  180. 


HOLDING  TO  TRIAL  COURT  THEORIES. 


421 


mentioned  the  subject  may  be  within  the  general  jurisdiction 
of  the  court,  yet  there  may  be  no  jurisdiction  in  the  particular 
case,  so  that  it  must  be  true  that  there  is  an  essential  difference 
between  cases  where  there  is  no  jurisdiction  of  the  subject,  that 
is  of  the  class,  and  cases  where  there  is  not  authority  over  the 
particular  case,  but  nevertheless  jurisdiction  of  the  general 
subject,  or  class. 

§  501.  Nature  of  Jurisdictional  Question — The  confusion  and 
obscurity  which  exists,  and  which  is  so  great  as  to  constitute 
what  may  not  inappropriately  be  called  a  legal  puzzle,  may  be 
cleared  away  and  removed  by  discriminating  between  jurisdic- 
tion of  the  subject  and  jurisdiction  of  the  subject-matter  of  a 
particular  case.  This  is  the  key  to  the  situation.  The  princi- 
ple that  there  is  jurisdiction  of  a  class  and  also  jurisdiction  of  a 
particular  subject-matter  is  a  reasonable  one,  and  is  recognized 
in  logical  treatises.1     An  objection  that  there  is  no  jurisdiction 


1  The  reasoning  of  the  majority  in 
the  case  of  Loeb  v.  Mathis,  37  Ind.  306, 
is  probably  opposed  to  this  view,  but 
the  reasoning  of  Frazier,  J.,  in  the  dis- 
senting opinion  is  far  stronger  and 
much  better  supported.  The  majority 
opinion  confounds  the  right  to  make 
an  objection  as  to  the  competency  of 
the  court  to  assume  to  take  any  ac- 
tion at  all  in  cases  belonging  to  a  gen- 
eral class  with  the  right  to  object  to 
jurisdiction  in  a  particular  case.  It  is 
undoubtedly  true,  as  has  been  repeat- 
edly said,  that  an  objection  that  there 
is  no  jurisdictional  capacity  whatever 
may  be  made  at  any  time,  but  it  by 
no  means  follows  from  this  that  there 
is  a  right,  notwithstanding  acquies- 
cence, to  object  for  the  first  time  on  ap- 
peal that  a  local  action  is  improperly 
brought.  The  majority  lost  sight  of 
the  distinction  between  cases,  where 
the  question  is  as  to  the  right  to  hold 
jurisdiction  where  jurisdiction  may  be 
presumed  and  cases  where  there  can  be 
no  such  presumption.     If  it  be  granted 


that  jurisdiction  in  a  court  of  general 
jurisdiction  may  be  presumed  (and  this 
can  not  be  controverted),  then  it  inevit- 
ably follows  that  the  presumption  con- 
tinues until  countervailing  facts  are 
made  to  appear.  The  rule,  indeed,  is  that 
nothing  is  to  be  presumed  to  be  out  of 
the  jurisdiction  of  such  a  court.  Hays  v. 
Ford,  55  Ind.  52;  Galpin  v.  Page.iSWall. 
350,364;  Hahn  v.  Kelly,  34  Cal.  391; 
Adams  v .  Jeffries,  12  Ohio,  253,  S.  C. 
40  Am.  Dec.  477;  State  v.  Lewis,  22  N. 
J.  L.  564;  Wallace  v.  Cox,  71  111.  548; 
Davis  v.  Hudson,  29  Minn.  27;  Reed  v. 
Vaughan,  15  Mo.  137,141;  Butcher  v. 
Bank,  2  Kan.  70,  80;  Palmer  v.  Oakley,  1 
Doug.(Mich.)  433,  S.  C.47  Am.  Dec.  40. 
As  this  is  the  presumption,  it  seems  quite 
clear  that  a  party  who  seeks  to  take  a 
single  case  out  of  a  jurisdiction  existing 
over  the  general  class  of  which  it  is  a 
member  should  make  his  objection  in 
the  trial  court,  since  he  may  well  be 
deemed  to  rightfully  submit  his  case  to 
a  court  having  authority  over  the  gen- 
era!   subject.     It  'would,  of  course,  be 


422  '    Vl1'   PROCEDURE. 

of  the  subject,  that  is,  of  the  general  class,  reaches  the  compe- 
U'licv  of  the  court  and  may  be  made  at  any  time,  since,  if  the 
court  is  not  competent  to  entertain  authority  over  the  class,  it 
is,  as  to  that  class,  as  if  there  were  no  court.  As  an  illustra- 
tion of  a  case  where  a  court  is  incompetent  because  of  want  of 
authority  may  be  taken  the  instance  of  a  justice  of  the  peace 
assuming  to  exercise  jurisdiction  in  a  case  of  purely  equitable 
cognizance.1  In  such  a  case  it  is  proper  to  hold  that  the  ques- 
tion of  jurisdiction  may  be  made  in  the  first  instance  in  the  ap- 
pellate tribunal.-  As  a  case  illustrating  the  rule  that  where 
there  is  general  authority  over  the  subject  no  objection  of  a  ju- 
risdictional character  not  in  some  mode  presented  to  the  trial 
court,  may  be  taken  that  of  a  party  liable  to  an  action  in  the 
county  where  the  wrong  was  committed  voluntarily  and  with-: 
out  objection  submitting  it  to  a  trial  in  a  different  county.3 

§  502.  Original  Objections  to  Jurisdiction — The  question  whether 
upon  due  and  opportune  objection  the  jurisdiction  of  the  trial 
court  over  a  particular  case  can  be  successfully  challenged  is 
different,  as  appears  from  what  has  been  said,  from  a  question 
whether  the  court  has  any  capacity  at  all  to  act.  So  far  as 
concerns  the  present  discussion,  the  question  is  important 
chiefly  for  its  bearing  upon  the  right  of  a  party  to  interpose 
an  original  objection  on  appeal,  since  we  are  here  concerned 
with  that  right.  The  presumption  of  jurisdiction  which  at- 
taches in  the  trial  court  must,  we  may  say  by  way  of  recapit- 
ulation, continue  on   appeal   unless  broken  by  an  objection  in 

otherwise  where  there  was  no  capacity  It  is  difficult,  if  not  impossible,  to  per- 

to  act  at  all,  because  no  jurisdiction  of  ceive   why   the   rule  should  not  be  the 

the  subject  was  by  law  conferred  upon  same  where  the  presumption  arises  from 

the  court.  the  fact  that  the   law  gives  the   tribunal 

1  Brown  ?'.  Goble,  97  Ind.  86.  jurisdiction  over  a  general  class  of  cases. 

2  It   has   been    held    that    where   the  The   presumption,  whether  created  by 

te  provides  that  jurisdiction  shall  the  written  or  the  unwritten  law,  is,  in 

Ik-    presumed     the     appellate     tribunal  all    essential     respects,    the    same,    and 

will  enforce  tin-   presumption   unless   it  should  prevail  against  collateral  attacks 

appears  affirmatively  that  it  was  impos-  ;i^  well  as  in  eases  where  noquestion  was 

siblethat  jurisdiction  could  have  existed  made  in  the  trial  court, 

in    the    trial    court.      Bidwell    i>.    Astor  3  Indianapolis,  etc.,  Co.  V.   Solomon, 

Mutual    Insurance    Co..    [6   N.    Y.  203.  23  Ind.  ^34. 


HOLDING  TO  TRIAL  COURT  THEORIES.  423 

that  court,  so  that,  at  last,  the  question  is  to  be  solved  by  ascer- 
taining whether  the  presumption  ever  did  attach.  It  seems 
that  the  just  conclusion  is  that  if  the  particular  case  is  one 
within  the  general  subject  over  which  jurisdiction  is  conferred 
the  presumption  did  attach,  but  if  it  is  not  then  the  presumption 
never  prevailed.  If  it  never  could  have  prevailed,  of  course, 
it  could  not  continue,  and  the  objection  may  be  successfully 
pressed  as  an  original  one  on  appeal. 

§  503.    Jurisdiction  of  the  Subject  uot  the  same  thing  as  Jurisdic- 
tion of  the  Particular  Case— That  there  are  instances  where  there 
is  jurisdiction  of  the  general  subject,  but  no  jurisdiction  of  the 
particular  case  is  quite  clear,  and  yet  the   difference  between 
jurisdiction  of  the  general  subject  and  jurisdiction  of  the  par- 
ticular instance  has  seldom  been  marked,  and  still  less  often 
discussed.     That  there  is  a  radical  difference  between  jurisdic- 
tion of  the  particular  case  and  jurisdiction  of  the  general  sub- 
ject is  shown  by  the  cases  referred  to  in  the  preceding  para 
graphs.     It  is  also  shown  in  the  cases  wherein   it  is  held  that 
although  a  bond  is  essential  to  complete  jurisdiction  on  appeal 
the  failure  to  file  the  bond  does  not  necessarily  deprive  the 
court  of  jurisdiction,  although  it  may  defeat  jurisdiction  of  the 
particular  case  if  there  is  a  timely  and  appropriate  objection 
interposed.      So,  in  cases   where   there  is  a  failure  to  perfect 
an   appeal   in   time,  there  is   ordinarily   no  jurisdiction  of  the 
case,  but  the  court  may,  upon  a  proper  application,  grant  reliet 
by   exercising  its  general   equity  powers.     In   neither  of  the 
cases  just  mentioned  could  there  be  authority  to  assume  con- 
trol of  the  case   if  there  were   no   general  jurisdiction  of  the 
subject,  for  where  there  is  no  such  jurisdiction  there  is  no  court, 
and  if  no  court,  there  is  of  course,  no  officer  or  tribunal  ca- 
pable of  acting  in  the  matter  at  all.     The  phrase  coram  11011 
judice  does  not   mean  that  the   person  who  assumes  to  be  a 
judge  is  not  a  judge  but  an  intruder,  or  usurper ;  on  the  con- 
trary, it  simply  means  that  he  is  not  a  judge  in  the  particular 
case  or  class  of  cases.     Thus,  if  a  prosecution  for  a  violation 
of  a  statute  of  the  United  States  should  be  instituted  in  a  State 
court,  as  to  that  case,  or  as  to  the  class  of  which  it  is  a  mem- 
ber, the  proceedings  would  be  coram  11011  judice,  but  the  judges 


424  APPELLATE  PROCEDURE. 

of  the  State  courts  would  not  be  intruders  or  usurpers  ;  they 
would  simply  be  without  jurisdiction  in  the  particular  class  of 
case.  Sc  where  an  appeal  is  not  taken  within  the  time  pre- 
scribed by  law,  there  is  no  jurisdiction  of  the  particular  appeal 
unless  peculiar  facts  exist  authorizing  the  court  to  exercise  its 
'  general  inherent  power  to  prevent  injustice  resulting  from  ac- 
cident or  fraud,  but  as  the  inherent  power  may  be  exercised  in 
the  proper  case  there  is,  in  a  general  sense,  jurisdiction  of  the 
subject.1  There  is  always  jurisdiction  of  the  abstract  subject 
of  appeals,  but  there  is  not  always  jurisdiction  of  particular 
cases.  It  is  quite  safe  to  conclude  that  there  may  be  instances 
where  the  jurisdiction  does  not  relate  to  the  person  but  to  the 
subject  (and  to  the  subject  directly  and  materially),  in  which 
there  is  authority  over  a  general  subject  or  class,  yet  no  juris- 
diction over  a  particular  member  of  the  class.2  The  difference 
between  jurisdiction  of  a  general  subject,  or  class,  and  juris- 
diction of  a  particular  case  is  often  of  importance  in  appellate 
procedure,  for  there  are  many  cases  where  an  objection  not 
made  below  to  the  jurisdiction  of  the  particular  case  will  not 
prevail  on  appeal,  but  there  are  no  cases  where  there  is  an  ut- 
ter lack  of  jurisdiction  of  the  general  subject  or  class  where  the 
objection  may  not  be  successfully  made  at  any  stage  of  the 
proceedings. 

1  General  jurisdiction  of  the  subject  ment  declares  where  the  venue  shall  be 

of  appeals  is  very  different  from  juris-  laid.      Furnival     :■.     Stringer,    supra; 

diction  of  a  special  instance.     So  is  ju-  Fineux    v.  Hovenden,  Croke  Eliz.  664, 

risdiction  of  a  class  of  actions  different  Coke's  Litt.   126  a,  Hargrave's  note,  5 

from  jurisdiction  of  a  particular  action.  Rep.  37,  Dyer,  367;    Crow  v.  Edwards, 

''  We  think  that  the  decisions  when  Hob.  5/'.     It  is  evident  that  if  there  was 

closely  analyzed  will  be  found  to  recog-  no  jurisdiction   of  the  general  subject 

nize  the  distinction  we  have  endeavored  this  conclusion  could  not  be  sound,  but 

to  establish.     Furnival   v.    Stronger,    1  it    is  sound    because  such    jurisdiction 

Bing.N.C.  68;  AndrewesT'.  Elliott, 6  E.  exists,  although  if  objection  had  been 

>S:  B.  33S;  Tverman  v.  Smith,  6  E.&B.  made  it  could   not  have  been  exercised 

719,724;     Lawrence  7\  Wilcock,  11  A.  in    the    particular   case.     The    general 

&E.941;     Vansittart  v.  Taylor, 4  E.&  jurisdiction  of  a  class   may   exist  and 

B.  910.     The  principle  we  have  asserted  yet    not  cover  a   particular  member  of 

is  declared  in   some   of  the  earliest  re-  the  class.    "By  subject-matter  is  meant 

ported  cases.     It  is  asserted  in  the  cases  the  abstract  thing  and  not  the  particu- 

which  hold  that  an   action   brought  in  lar  case."     Yates  v.  Lansing,  5  John-. 

the  wrong  county  may  be  maintained  2S2;     State   v.  Wolever,    127   Ind.  306, 

where  there  is  a  waiver  of  objection  to  315. 
jurisdiction  although  an  act  of  Parlia- 


CHAPTER  XXV. 


AUXILIARY   PROCEEDINGS. 


§  504.    Auxiliary  power  of  appellate  tri- 
bunals. 
1505.    The  nature  of  auxiliary  jurisdic- 
tion. 

506.  The  principal  classes  of  auxili- 

ary proceedings. 

507.  Appeal  must  be  pending  to  au- 

thorize the  exercise  of  the  aux- 
iliary jurisdiction — G  e  n  e  r  a  1 
rule. 

508.  Exceptions  to  the  rule  requiring 

the  transcript  to  be  filed  before 
asking  assistance. 

509.  The  application  for  assistance. 


510.  Statutory  provisions — ■  Injunc- 

tions. 

511.  Statutory  provisions  —  Manda- 

mus and  Prohibition. 

512.  Injunctions. 

513.  Injunctions  —  Matters  of  prac- 

tice. 

514.  Mandamus — Power  to  issue. 

515.  Mandamus — Cases  in  which  it 

will  not  issue. 

516.  Mandamus — Cases  in  which  it 

will  issue. 

517.  Mandamus— Matters  of  practice. 
51S.    Prohibition. 


§  504.  Auxiliary  Power  of  Appellate  Tribunals— As  we  have  re- 
peatedly said,  appellate  jurisdiction  is  essentially  and  primarily 
one  of  review,  and,  while  it  is  true  that  both  appellate  and  orig- 
inal jurisdiction  may  reside  in  the  same  tribunal,  still,  the  two 
kinds  of  jurisdiction  are  radically  different  and  distinct.  In- 
vesting a  tribunal  with  both  original  and  appellate  jurisdiction 
does  not  blend  the  two  species  of  jurisdiction,  for  they  are  so 
intrinsically  unlike  that  they  can  not  be  harmoniously  combined. 
But,  while  the  two  kinds  of  jurisdiction  are  distinct,  yet  juris- 
diction in  its  nature  original  must  necessarily  reside  in  all  ap- 
pellate tribunals  of  high  rank,  since,  without  such  jurisdiction, 
they  could  not  effectively  carry  out  the  purpose  for  which  they 
were  created.  There  must,  therefore,  dwell  in  all  such  tribu- 
nals a  species  of  jurisdiction  which  may  be  denominated  auxili- 
ary. This  auxiliary  jurisdiction  is  an  incidental  attribute,  and 
inheres  in  all  high  courts  as  a  necessary  element  of  their  exist- 
ence. A  power  essential  to  the  existence  of  a  high  court  of 
justice  and  necessary  to  enable  it  to  accomplish  the  great  ob- 
ject  of  its  existence   comes   into   being  with  the   court   itself. 

(425) 


APPELLATE   PROCEDURE. 

Such  a  court  must  have  power  to  cause  its  judgments  to  be 
carried  into  effect,  otherwise  its  judgments  would  be  mere  empty 
declarations.  So,  it  must  have  power  to  cause  records  to  be 
truly  presented  to  it,  and  so,  too,  it  must  have  power  to  protect 
its  own  records  and  maintain  its  own  existence.  These,  and 
other  powers,  are  inherent,  and  hence  are  implied  in  the  very 
act  of  creating  an  appellate  tribunal  and  investing  it  with  the 
powrer  to  review  the  decisions  and  judgments  of  the  trial  courts 
of  the  commonwealth.  A  court  without  such  powers  would  be 
little  else  than  a  court  in  name. 

§  505.  The  nature  of  Auxiliary  Jurisdiction — Auxiliary  jurisdic- 
tion, under  a  system  such  as  ours,  is  essentially  an  incident,  or 
appendage,  of  the  power  to  review  judgments  and  decrees  pro- 
nounced by  courts  of  original  jurisdiction.  It  is  not,  in  the 
strict  sense,  in  any  respect  original.  It  does  not  exist  because 
of  any  right  to  pronounce  original  judgments,  but  it  exists  be- 
cause it  is  necessary  to  enable  the  court  to  properly  conduct  its 
business,  make  its  judgments  effective,  maintain  its  independ- 
ence and  administer  justice. 

§  506.  The  principal  Classes  of  Auxiliary  Proceedings — One  of  the 

most  important  of  the  classes  of  auxiliary  proceedings  is  that 
to  which  the  name  certiorari  is  usually  given.  The  term  "  cer- 
tiorari" as  generally  employed  in  appellate  procedure,  means 
an  order  or  writ  issued  to  a  trial  court,  or  an  officer,  command- 
ing the  correction  of  a  record,  or  the  proper  certification  of  it 
to  the  appellate  tribunal.  But  we  have  elsewhere  fully  dis- 
cussed the  proceeding  by  certiorari?  and  we  need  do  no  more 
here  than  mention  the  proceeding.  The  remaining  classes  of 
auxiliary  proceedings  which  are  of  sufficient  practical  import- 
ance to  require  consideration  are  injunction,  mandamus  and 
prohibition.  It  is  probably  true  that  in  very  rare  instances, 
writs  of  injunction,  writs  of  mandamus,  and  writs  of  prohibi- 
tion may  issue  in  a  proceeding  strictly  original,  but  we  are  not 
to  treat  of  them  as  original  writs.  Our  discussion  will  be  con- 
fined to  such  writs  as  are  employed  as  assistants  or  auxiliaries 

1  AnU  .  \  \  216,  j  17.  j  in.  219. 


AUXILIARY   PROCEEDINGS.  427 

of  the  power  to   review  judgments  or  decrees  pronounced  by 
courts  of  original  jurisdiction. 

§  507.  Appeal  must  be  Pending  to  authorize  the  exercise  of  the 
Auxiliary  Jurisdiction — General  Rule — The  general  rule  is  that 
an  appeal  must  be  pending  or  the  auxiliary  jurisdiction  of  the 
appellate  tribunal  can  not  be  successfully  invoked.  This  rule 
rests  on  the  principle  that  until  the  case  reaches  the  appellate 
tribunal  it  has  no  power  to  make  any  order  or  pronounce  any 
judgment  concerning  the  controversy.  It  further  results  from 
this  principle  that  a  party  must  do  all  that  is  in  his  power  to 
perfect  an  appeal  before  asking  aid  of  the  appellate  tribunal. 
If  it  is  within  his  power  to  file  the  transcript,  assign  errors  and 
issue  notice,  he  must  do  so  before  asking  the  court  to  assist  him 
in  securing  an  appeal.  After  he  has  done  all  that  he  can  do 
unassisted  to  bring  the  case  into  the  appellate  tribunal,  that  tri- 
bunal will  help  him  by  removing  obstacles  wrongfully  placed 
in  his  wray  and  by  compelling  courts  and  officers  to  perform  the 
duties  enjoined  by  law.1  Until  the  part}-  has  done  all  that  he 
can  do  unassisted,  there  is  no  ground  upon  which  the  extraor- 
dinary powers  of  the  court  can  be  invoked  for  his  relief.  It  is 
evident  that  the  rule  stated  is  the  only  defensible  and  practical 
one,  for  if  a  party  were  allowed  to  invoke  the  assistance  of  the 
court  before  filing  a  transcript  or  taking  other  steps  to  perfect 
an  appeal  he  might  secure  extraordinary  aid  in  a  case  where 
general  jurisdiction  might  never  attach. 

§  508.  Exceptions  to  the  Rule  requiring  Transcript  to  be  filed  be- 
fore asking  Assistance — It  is  obvious  that  there  must  necessarily 
be  exceptions  to  the  rule  that  the  transcript  must  be  filed  in  the 
appellate  tribunal  before  its  assistance  in  perfecting  the  appeal 
can  be  invoked,  for  if  it  were  otherwise,  it  would  be  in  the 
power  of  the  trial  court  to  prevent  an  appeal,  and  that  it  has 

1  There  are  few,  if  any,  reported  cases  him  in  perfecting  his  appeal  and  secur- 

upon  this  subject,  but  the  practice  has  ing  his  rights.     He  must  secure  such  a 

always  been,  so  far  as  we  are  aware,  to  transcript  as  he  can  obtain  and  file  it. 

require  a  partv  to  do  all  that  he  can  to  then    ask   the    needed   assistance.     See 

perfect  his  appeal.     It  is  only  when  he  the  next  paragraph  for  a  consideration 

has   done  this  that  the    court  will  aid  of  exceptional  cases. 


128  APPELLATE  PROCEDURE. 

no  right  to  do.  Where  a  trial  judge  refuses  to  take  such  steps 
as  are  necessary  to  enable  the  appellant  to  secure  an  appeal, 
the  appellate  tribunal  will  grant  him  relief  if  he  has  been  dili- 
gent and  is  free  from  fault.  It  may  be  in  rare  cases  that  no 
transcript  can  be  obtained  because  of  the  wrongful  conduct  of 
a  judge  or  a  ministerial  officer,  and  in  such  cases  the  appellant 
may  apply  to  the  appellate  tribunal  for  relief  without  tiling  a 
transcript,  but  he  must  show  in  his  application  that  the  failure 
to  secure  a  transcript  was  not  owing  to  any  fault  on  his  part. 
Where  a  transcript  can  be  secured,  even  though  it  may  be  im- 
perfect and  incomplete,  it  should  be  obtained  and  filed. 

§  509.  The  Application  for  Assistance — The  party  who  asks  as- 
sistance to  enable  him  to  perfect  an  appeal  must  make  a  clear 
and  strong  case.  This  is  so  because  he  asks  that  an  extraordi- 
nary remedy  be  applied  for  his  benefit  and  that  public  officers 
be  coerced  into  a  performance  of  duty.1  It  is  necessary  that 
the  facts  should  be  clearly  and  fully  set  forth  in  the  petition, 
that  the  allegations  should  show  inexcusable  fault  on  the  part 
of  those  against  whom  the  petition  is  directed,  and  that  the  pe- 
titioner has  been  diligent  and  is  free  from  fault.  The  appellate 
courts  grant  extraordinary  relief  with  caution  and  only  in  clear 
cases,  so  that  it  is  always  necessary  to  make  a  case  strong  and 
full  in  all  essential  particulars.  With  respect  to  injunctions 
this  is  especially  true  as  will  appear  from  what  is  said  in  the 
paragraphs  that  follow. 

§  510.  Statutory  provisions — Injunctions — The  provisions  of  the 
code  respecting  the  granting  of  injunctions  are,  in  effect,  noth- 
ing more  than  the   declaration  of  a  general  principle  of  law.2 

1  H<j  must  overcome  the  presumption  2  R.  S.  1S81,  §  1 147.     The  statute  pro- 

thal  the  officers  have  performed  their  du-  vides  that  "Restraining  orders  and  in- 

ties.    It  isa  rudimental  rule  that  onewho  junctions  may   be  granted   by  the  Su- 

charges  an  officer  with  a  breach  of  duty,  preme  Court  in  term   time,  when  nec- 

either  negligent  or  wilful,  must  affirma-  essary    for    the    due    exercise    of    the 

lively  and   clearly   show   such   facts  as  jurisdiction  and  powers  of  such  court, 

rebul  the  presumption  that   the  onieer  or  by  any  judge  thereof  in  vacation  or 

did   his  duty.     Jackson   School  Tp.  v.  recess."     There  can  be  little  doubt  that 

Farlow,    75    Ind.    11S,   and  authorities  under  this  provision  the  right  to  an  in- 
junction exists  only  in  cases  where  it 


AUXILIARY   PROCEEDINGS.  429 

They  do  not  confer  original  jurisdiction  but  simply  declare  that 
the  court  may  grant  an  injunction  in  aid  of  its  appellate  power 
and  jurisdiction.  It  is  evident,  therefore,  that  injunctions  or 
restraining  orders  can  only  be  granted  in  cases  where  there 
is  a  pending  appeal,  and  where  such  relief  is  essential  to  a  due 
and  effective  exercise  of  appellate  jurisdiction. 

§511.   Statutory  provisions  —  Mandamus  and  Prohibition  —  The 

statute  does  not  authorize  either  of  the  appellate  courts  to  en- 
tertain original  jurisdiction  in  mandamus  or  prohibition  pro- 
ceedings, but,  on  the  contrary,  carefully  limits  their  power  to 
issue  writs  of  mandamus  or  prohibition  to  cases  where  such 
writs  are  essential  to  a  due  and  effective  exercise  of  appellate 
jurisdiction.1  But,  notwithstanding  the  limitation  of  the  statute, 
there  must  be  cases  where  a  writ  of  mandamus  or  prohibition 
will  issue,  although  at  the  time  it  is  issued  there  is  no  pending 
appeal.  In  a  former  paragraph  of  this  chapter  we  have  given 
reasons  for  this  conclusion.2  Ordinarily,  however,  neither  a 
writ  of  mandamus  nor  a  writ  of  prohibition  can  issue  unless 
there  is  an  appeal  calling  into  active  exercise  the  appellate  ju- 
risdiction. That  exceptions  to  this  general  rule  do  exist  we 
have  already  affirmed,3  but  these  exceptions  by  no  means  prove 
that  the  general  rule  does  not  exist. 

§  512.  Injunctions — It  is  no  doubt  true  that  the  appellate  tri- 
bunals of  a  State  are  invested  with  power  to  issue  injunctions 
when  necessary  to  enable  them  to  fully  and  effectively  exercise 
appellate  jurisdiction.4     The  only  question  that  can  arise  is  as 

is  clearly  made  to  appear  that  the  writ  s  Ante,  Chapter  II,  "Appellate  Tri- 

is  required  to  enable  the  court  to  effec-  bunals." 

tively  perform  its  functions  as  a  court  *  In  the  case  of  Hicks  v.  Michael,  15 

of  review.  Cal.  107,  1 14,  the  power  of  the  appellate 

'The    statutory    provision    is    this:  tribunal  to  issue  an  injunction  pending 

"  Writs    of    mandate    and    prohibition  an  appeal  was  denied,  but  the  question 

may  issue  from  the  Supreme  and  Cir-  received  very  little  consideration.     All 

cuit  Courts  of  this  State,  but  such  writs  that  was  said  upon  the  subject  was  this: 

shall    issue    from    the    Supreme   Court  "An  examination   of  the  question   has 

only   when   necessary   for  the  exercise  satisfied  us  that  we  had  no  authority  to 

of  its    functions  and  powers."      R.  S.  issue  the  writ.      No  such  authority  ha* 

188 1,  §  1167.  been  given  us  by  the  legislature,  and  we 

2  Ante,  §§  504,  505.  regard  the  matter  as   one   involving  a 


430 


APPELLATE   PROCEDURE. 


to  what  matters  are  embraced  within  the  appellate  jurisdiction, 

so  that  the  inquiry  goes  to  the  extent  and  scope  of  the  power 
rather  than  to  the  existence  of  the  power  itself.  Where  there 
is  an  attempt  to  disobey  an  order  or  judgment  made  or  given 
in  a  pending  appeal  the  power  of  the  court  to  prevent  disobed- 
ience by  an  injunction  is  clear,  but  where  there  is  no  such  order 
or  judgment  it  is  difficult  to  set  bounds  to  the  power.  It  is  en- 
tirely safe  to  affirm  that  a  writ  of  injunction  can  not  be  issued 
save  in  the  exercise  of  some  function  of  appellate  jurisdiction. 
Original  jurisdiction  can  only  be  exercised  by  the  courts  to 
which  original  jurisdiction  is  confided  by  the  constitution  or  the 
laws.1     Mischievous  and  evil  results  would   inevitably  follow 


mere  question  of  practice,  and  the  leg- 
islature as  having  full  and  entire  con- 
trol of  the  subject."  We  venture  to  say 
that  this  is  a  narrower  view  of  the  sub- 
ject than  is  warranted  by  principle  or 
authority.  The  fundamental  principle 
that  all  high  courts  of  justice  possess 
inherent  powers  was,  as  we  believe, 
overlooked.  We  do  not  believe  that  it 
is  necessary  to  specifically  enumerate 
the  powers  of  a  judicial  tribunal  of  the 
highest  rank,  since  many  powers  are 
implied  in  the  very  act  of  establishing 
such  a  court.  A  sounder  view  of  the 
general  subject  is  that  of  the  Supreme 
Court  of  Ohio  in  the  case  of  Kent  v. 
M  abaft  v,  2  Ohio  St.  498,  where  Thur- 
man,  J.,  speaking  for  the  court,  said: 
"That  we  can  allow  an  injunction,  in  a 
case  pending  in  this  court,  upon  an  ap- 
peal is  very  clear.  A  decree  may  be 
the  very  object  of  the  suit — the  final 
decree  sought — and  so  a  provisional 
injunction,  during  the  pendency  of  the 
suit,  may  be  necessary  for  the  purposes 
of  justice.  The  power  to  allow  these  is  a 
part  of  the  appellate  jurisdiction,  the 
grant  of  which  is  authorized  by  the  con- 
stitution, and  has  been  made  by  the  law. 
But  to  allow  an  injunction  in  a  suitpend- 
ing  in  another  court,  would  be  an  exer 
cise  of  original  and  not  of  appellate  ju- 


risdiction. Now,  the  original  jurisdic- 
tion conferred  upon  this  court  by  the 
constitution  is  limited  to  quo  warranto 
mandamus,  habeas  corpus  and  proce- 
dendo. Art.  IV,  §  2.  This  is  the  only 
original  jurisdiction  granted  by  that 
instrument,  and  it  would  be  wholly  in- 
consistent with,  and,  in  a  great  measure, 
destructive  of  the  judicial  system  it  or- 
dains, to  suppose  that  this  original  ju- 
risdiction can  be  enlarged  by  law.  It 
is  true  there  is  no  express  prohibition 
against  it,  but  none  was  necessary.  We 
can  exercise  only  such  powers  as  the 
constitution  itself  confers,  or  authorizes 
the  legislature  to  grant.  We  can  derive 
no  power  elsewhere.  It  follows,  that, 
to  negative  the  existence  of  a  power  it 
is  not  necessary  to  show  that  it  is  for- 
bidden by  the  constitution.  It  is  suffi- 
cient that  that  instrument  neither  di- 
rectly nor  indirectly  confers  it." 

1  Ex  parte  Logan  Branch,  etc.,  Bank, 
1  Ohio  St.  433;  Merrill  v.  Lake,  16  Ohio, 
373;  Campbell  v.  Campbell,  22  111.  664; 
Bryant  v.  People,  71  111.  32.  In  Camp- 
bell v.  Campbell,  supra,  the  court  said  : 
"  Now  unless  it  can  be  shown  that  orig- 
inal applications  for  injunction  is  an  ex- 
ercise of  the  appellate  jurisdiction  of  this 
court  we  can  not  act.  That  it  is  not 
such    an    exercise    no    one    will    deny. 


A  UXILIARY  PROCEEDINGS. 


431 


from  a  blending  of  appellate  and  original  jurisdiction,1  since 
the  machinery  of  the  appellate  and  trial  courts  is  of  such  a 
radically  different  character.  It  is  with  reason,  therefore,  that 
the  appellate  tribunals  are  reluctant  to  exercise  jurisdiction  that 
is  in  its  nature  original.3  Sound  principle,  as  well  as  wise  pol- 
icy, demands  that  these  independent  jurisdictions,  for  such  they 
are,  be  kept  separate,  for  deplorable  consequences  must,  of  ne- 
cessity, result  from  blending  them.  The  power  to  review  is  in 
its  nature  different  from  the  power  to  originally  try  and  decide, 
and  only  evil  can  flow  from  an  attempt  to  break  down  the  bar- 
rier which  separates  them.  Such  an  attempt  can  only  be  arbi- 
trary since  there  is  no  principle  upon  which  a  union  of  the  two 
jurisdictions  can  be  effected.  Our  court  has,  as  we  believe, 
gone  counter  to  true  principle  in  holding,  as  it  has,  that  an  in- 
junction may  be  granted  to  prevent  a  party  from  entering  a 


Emphatically  this  is  an  appellate  court 
only,  having  original  jurisdiction  in  a 
few  specified  cases."  Some  of  the 
courts  hold  that  even  where  the  consti- 
tution confers  original  concurrent  ju- 
risdiction that  whether  such  jurisdiction 
shall  or  shall  not  be  exercised  is  a  mat- 
ter to  be  determined  by  the  court  in  the 
exercise  of  a  sound  discretion.  Com- 
monwealth v.  Smith,  4  Binney,  117; 
State  v.  Stewart,  32  Mo.  379.  In 
every  instance  which  has  come  to  our 
notice  the  courts  have  declined  to  exer- 
cise original  jurisdiction  unless  the 
duty  to  exercise  it  was  imperative. 
State  v.  Lawrence,  38  Mo.  535;  State 
v.  Vail,  53  Mo.  97,  107.  See,  also,  Fos- 
ter v.  State,  41  Mo.  61;  Vail  r'.Dining, 
44  Mo.  210. 

1  Since  the  text  was  written  the  sub- 
ject has  received  consideration  from 
the  Indiana  Appellate  Court.  In  the 
case  of  Sheeks  v.  Fillior,  29  N.  E.  Rep. 
443;  that  court  decided  that  injunction 
may  be  awarded  in  aid  of  the  appellate 
jurisdiction  but  not  in  an  original  pro- 
ceeding. It  was  said,  in  the  course  of 
the  opinion,  that:  "An  authority  to 
issue  injunctions  is  ancillary  to  our  ap- 


pellate jurisdiction.  We  may  exercise 
such  authority  to  preserve  the  rights 
involved  in  a  cause  pending  on  appeal." 
2  In  Wisconsin  the  constitution  in- 
vests the  Supreme  Court  with  original 
jurisdiction  in  specified  cases,  but  the 
court  has  done  all  in  its  power  to  limit 
the  constitutional  provision.  In  At- 
torney General  v.  Railroad  Companies, 
35  Wis.  425,  517,  the  subject  is  discussed 
with  vigor  and  ability,  and  it  was  said, 
in  the  course  of  the  opinion,  that,  "  The 
grant  of  original  jurisdiction  is  one  en- 
tire thing,  given  in  one  general  policy, 
for  one  general  purpose,  though  it  may 
have  many  objects  and  many  modes  of 
execution.  So  it  is  of  the  appellate 
power.  So  it  is  of  the  superintending 
control.  These  are  three  independent 
and  distinct  grants  of  jurisdiction,  each 
compact  and  congruous  in  itself,  each  a 
uniform  group  of  analogous  remedies, 
though  to  be  exercised  in  several  ways, 
by  several  writs  in  legal  and  equitable 
proceedings,  on  many  objects  in  great 
variety  of  detail."  See,  also,  Attorney 
General  v.  Blossom,  1  Wis.  317;  Attor- 
ney General  v.  City  of  Eau  Claire,  37 
Wis.  400,  443. 


432  APPELLATE  PROCEDURE. 

public  office  to  which  he  was  adjudged  to  be  entitled  by  the 
judgment  of  the  trial  court.1  It  is  difficult  to  conceive  upon 
what  principle  such  a  ruling  can  be  said  to  be  made  in  the  ex- 
ercise of  appellate  jurisdiction,  since  whether  a  party  shall  or 
shall  not  be  inducted  into  office  is  an  original  question. 
But  since  the  decision  referred  to  was  made  injunctions  have 
been  occasionally  granted  to  maintain  the  status  quo  as  it  ex- 
isted at  the  time  the  appeal  was  taken.  The  power  has,  how- 
ever, been  sparingly  exercised  and  an  injunction  awarded  only 
in  unusual  cases.  A  strong  case,  fully  exhibited,  has  been 
uniformly  required.  More  applications  by  far  have  been  de- 
nied than  granted. 

§  513.  Injunctions — Matters  of  Practice — The  statute  makes  no 
provision  as  to  the  procedure  in  obtaining  a  restraining  order 
or  injunction  on  appeal,  but  the  practice  is  substantially  that 
prescribed  for  the  trial  court.  A  verified  petition  is  required. 
Notice  must  be  given  or  such  an  emergency  shown  as  dispenses 
with  notice.     A  bond  or  undertaking  must  also  be  filed. 

§514.  Mandamus — Power  to  Issue — The  general  "superintend- 
ing control"  of  appellate  tribunals,  as  it  is  called  by  an  able 
judge,2  empowers  them  to  coerce  the  performance  of  duties  im- 
posed by  law  upon  judicial  and  ministerial  officers.  It  is  man- 
ifest that  some  supreme  controlling  and  supervisory  power  must 
be  lodged  in  the  courts  of  last  resort,  for  otherwise  trial  judges 
or  ministerial  officers  might  completely  defeat  the  right  of  ap- 
peal. This  "superintending  control "  is  not  an  independent 
and  distinct  power,  but,  on  the  contrary,  is   an  incident  of  su- 

1  Leech  v.  State,  78  Ind.  570,  579.    In  by   this  court.     In  many  cases  in  this 

the  case  cited,  Worden,  J.,  speaking  for  court  restraining  orders  have  been  is- 

the  majority  of  the  court,  said:     "This  sued  to  prevent  advantage  being  taken 

statute  we   construe  to  mean  that  re-  of  a  judgment   below  until  the  deter- 

straining  orders,  etc.,  may  be  issued  by  mination  of  the  cause  here,  though  the 

this  court,  or  bv  any  judge  thereof  in  reports  may  not  show  them,  because  in 

vacation, whenever  it  maybe  necessary  the  opinions  pronounced  no  notice  has 

and   proper,  in   the  exercise  of  its  ap-  been  taken  of  them." 

pellate    jurisdiction    to     preserve    the  2  Ryan,  C.  J.,  in  Attorney  General  r. 

rights  of  the  parties  to  a  cause  pending  Railroad  Companies,  35  Wis.  425,  517. 
before  it,  until  the  decision  of  the  cause 


AUXILIARY   PROCEEDINGS. 


433 


perior  appellate  jurisdiction.1  It  is  not  a  power  to  be  exerted 
by  appellate  tribunals  in  the  exercise  of  original  jurisdiction 
except  where  the  law  commands  that  it  shall  be  so  exerted. 
But  while  it  is  true  that  the  power  is  an  attribute  of  appellate 
jurisdiction  it  is,  nevertheless,  true  that  it  may  be  exercised, 
although  no  appeal  is  actually  pending.  The  decision  of  pend- 
ing appeals  is  by  no  means  all  there  is  of  appellate  jurisdiction, 
for  appellate  jurisdiction  extends  much  farther ;  it  includes  the 
power  to  remove  obstacles  to  appeals,  the  power  to  assist  a 
party  to  perfect  an  appeal,  and  the  power  to  compel  decisions 
by  inferior  tribunals. 

§  515.  Mandamus— Cases  in  which  it  will  not  issue— Where  the 
proceeding  is  an  original  one  and  is  not  in  any  way  connected 
with  the  right  of  appeal,  or  the  exercise  of  appellate  jurisdic- 
tion, mandamus  will  not  be  awarded.  This  general  doctrine  is 
illustrated  by  a  case  in  which  it  was  held  that  the  writ  would 
-not  issue  to  compel  the  trial  court  to  proceed  with  a  case  in 
which   a   decree  forfeiting   corporate   franchises   was    sought.2 

this  high  judicial  writ.  It  not  only  lies 
to  ministerial,  but  to  judicial  officers. 
In  the  former  case  it  contains  a  man- 
date to  do  a  specific  act,  but  in  the  lat- 
ter only  to  adjudicate,  to  exercise  a  dis- 
cretion upon  a  particular  subject."  See, 
also,  Attorney  General  v.  Boston,  123 
Mass.  460,  472;  Chase  v.  Blackstone, 
etc.,  Co.,  10  Pick.  244,  246;  Carpenter. 
v.  Countv  Commissioners,  21  Pick.  258. 
2  State  v.  Biddle,  36  Ind.  13S.  It  is 
to  be  said  of  the  case  cited  that,  while 
the  reasoning  of  the  court  in  the 
main  is  sound,  it  is  not  altogether 
clear  that  there  was  not  error  in  apply- 
ing the  rule  declared.  The  rule  was 
correctly  asserted,  but  it  is  not  so  clear 
that  it  was  not  misapplied.  This  we 
say  because  we  think  it  settled  that  par- 
ties have  a  right  to  a  decision,  and  the 
refusal  to  decide  is  an  obstacle  to  an 
appeal  which  the  appellate  tribunal  may 
remove.  The  question  in  the  case  cited 
was,  however,  as  to  the  right  to  compel 


1  The  authorities  fully  support  the 
■doctrine  that  the  high  courts  of  justice 
possess,  as  an  inherent  power,  the  gen- 
eral superintending  control  of  inferior 
tribunals.  The  common  law  fully  rec- 
ognized the  principle.  3  Blackst.  Com., 
no.  Queen  v.  Eastern  Counties  Ry. 
Co.,  10  Ad.  &  Ell.  531,  547.  In  Strong's 
Case,  20  Pick.  484,  495,  the  doctrine 
was  admirably  stated  by  Morton,  J. 
Speaking  for  the  court  he  said:  "In 
every  well  constituted  government  the 
highest  judicial  authority  must  neces- 
sarily have  a  supervisory  power  over 
.all  inferior  or  subordinate  tribunals, 
magistrates  and  others  exercising  pub- 
lic authority.  If  they  commit  errors,  it 
will  correct  them.  If  they  refuse  to 
perform  their  duty  it  will  compel  them. 
In  the  former  case  by  writ  of  error,  in 
the  latter  by  mandamus.  And  gener- 
ally in  all  cases  of  omissions  or  mis- 
takes, where  there  is  no  other  adequate 
specific  remedy,  resort  may  be  had  to 

28 


434 


APPELLATE  PROCEDl  Kl. 


Another  illustrative  case  is  that  wherein  an  application  was 
unsuccessfully  made  by  an  attorney,  who  had  been  disbarred 
by  the  judgment  of  the  trial  court,  for  a  writ  of  mandamus  to 
compel  the  trial  court  to  restore  him  to  the  place  formerly  held 
by  him  as  a  member  of  its  bar.1  Mandamus  will  not  lie  to  cor- 
rect an  error  in  a  decision  or  judgment  of  a  judicial  tribunal  ; 
the  remedy  for  the  review  and  correction  of  erroneous  decisions 


the  trial  court  to  proceed  after  a  super- 
is  had  been  issued  in  a  dependent 
proceeding.  In  the  course  of  the  opin- 
ion the  court  said:  "  But  so  far  as  this 
court  is  concerned,  the  power  to  award 
the  writ  is  confined,  as  we  have  seen,  to 
those  cases  where  it  is  necessary  in  the 
appropriate  discharge  of  its  duties  as 
an  appellate  court,  such,  for  instance, 
as  to  compel  a  judge  to  sign  a  bill  of 
exceptions,  or  to  carry  out  instructions 
given  by  the  court  with  regard  to  fur- 
ther proceedings  in  a  cause  remanded 
by  this  court,  etc.  The  case  at  bar 
seems  to  be  an  independent  proceeding, 
not  in  any  way  necessary  to  a  discharge 
of  the  functions  of  this  court.  We  are, 
therefore,  of  the  opinion  that  we  have 
no  jurisdiction  or  power  to  award  the 
writ  in  this  case."  In  Cluck  v.  State, 
40  Ind.  263,  the  court  asserted  a  general 
principle  applicable  here,  although  there 
addressed  to  a  different  proceeding.  It 
was  said  by  the  court:  "This  court 
possesses  no  original  jurisdiction.  This 
court  acts  alone  upon  the  record  as  made 
in  the  inferior  court,  and  as  certified  to  us 
in  the  manner  prescribed  by  law."  See, 
also,  Whittem  v.  State,  36  Ind.  196.  It 
is,  however,  to  be  borne  in  mind  that  ap- 
pellate jurisdiction  covers  a  much  wider 
field  than  some  of  the  expressions  used 
in  the  cases  referred  to  indicate.  What- 
ever powers  lie  within  that  field  may 
be  rightfully  exercised,  although  there 
ma}'  be  no  pending  appeal.  Mandamus 
is  ordinarily  an  original  remedy,  and 
as  such  it  is  to   he  awarded  and  applied 


by  courts  of  original  jurisdiction,  except 
where  it  is  a  necessary  adjunct  of  ap- 
pellate jurisdiction.  Daniel  V.  County 
of  Warren,  1  Bibb.  496;  King  v.  Hamp- 
ton, 3  Ilayw.  (Tenn.),  59;  Cowell  v. 
Buckelew,  14  Cal.  640;  Howell  v. 
Crutchfield,  Hemp.  99;  Westbrooks  v. 
Wicks,  36  la.  3S2;  Whitefield  v.  Greer, 
3  Baxt.  78.  See,  generally,  Common- 
wealth v.  Wickersham,  90  Pa.  St.  311; 
Hinkle  v.  Ball,  34  Ark.  177;  State  v. 
Supervisors,  3S  Wis.  554;  State  v. 
Breese,  15  Kan.  123;  State  v.  County 
Court,  etc.,  64  Mo.  170.  The  solution 
of  the  question  whether  the  appellate 
tribunal  can  award  a  writ  of  mandamus 
is  reached  when  it  is  satisfactorily  de- 
termined that  the  award  of  the  writ  is 
a  proper  adjunct  or  incident  of  appel- 
late jurisdiction.  It  may  be  said,  in  a 
general  way,  that  if  the  writ  is  neces- 
sary to  enable  a  party  to  perfect  an  ap- 
peal, where  there  is  a  clear  right  to  ap- 
peal appropriately  asserted,  or  to  carry 
into  execution  an  order  or  judgment  of 
the  appellate  tribunal,  the  power  to 
award  the  writ  may  properly  be  regard- 
ed as  an  adjunct  or  appendage  of  the 
jurisdiction  of  the  appellate  tribunal. 

1  Walls  v.  Palmer,  64  Ind.  493.  In 
the  case  cited  it  was  held  that  man 
damus  was  an  appropriate  remedy 
in  the  court  of  original  jurisdiction,  hut 
that  the  writ  could  not  be  awarded  in 
such  a  case  by  the  Supreme  Court  tor 
the  reason  that  it  could  not  exercise 
original  jurisdiction. 


AUXILIARY   PROCEEDINGS. 


435 


and  judgments  is  by  writ  of  error  or  by  appeal.1  Action  may 
be  coerced  by  mandamus,  but  the  decision  will  not  be  dictated 
by  the  appellate  tribunal.2  The  exercise  of  a  discretionary 
power  may  be  compelled  by  mandamus,  that  is,  the  tribunal 
may  be  put  in  motion,  but  the  exercise  of  the  power  will  not  be 
controlled.  The  inferior  tribunal  will  be  commanded  to  act, 
but  it  will  not  be  commanded  to  make  or  refrain  from  making 
a  particular  decision.3  Mandamus  will  not  lie  to  compel  the 
granting  of  a  new  trial,4  for  an  erroneous  denial  of  a  new  trial 
is  a  wrong  to  be  corrected  on  appeal.5 


1  Rex  v.  Justices  of  Monmouth,  7 
Dowl.  &  Ry.  334;  Queen  v.  Lord's 
Commissioners,  etc.,  10  A.  &  E.  179; 
Queen  v.  Lord  Steward  of  Old  Manor 
Hall,  10  A.  &  E.  248;  Ex  parte  Loring, 
94  U.  S.  418;  Ex  parte  Perry,  102  U. 
S.  183;  Ex  parte  Parker,  120  U.  S.  737; 
Ex  parte  Morgan,  114  U.  S.  174.  It  has 
been  held  that  a  party  may  move  for 
judgment  against  himself,  and  upon  the 
refusal  of  the  court  to  render  it  obtain 
a  writ  of  mandamus.  Fish  v.  Weath- 
erwax,  2  Johns.  Cases,  215. 

2  Ex  parte  Railway  Co.,  101  U  S. 
711,  720;  Ex  parte  Brown,  116  U.  S. 
401;  Decatur  -'.Paulding,  14  Pet.  497, 
499;  United  States  v.  Guthrie,  17  How. 
284;  United  States  v.  Edwards,  etc., 
Commissioners,  5  Wall.  563;  Litchfield 
v.  Richards  Register,  etc.,  9  Wall.  575, 
577;  Carrick  v.  Lamar,  116  U.  S.  423; 
State  i'.  Board,  45  Ind.  501;  State  v. 
Demaree,  So  Ind.  519;  Ex  parte  Bost- 
wick,  1  Cow.  143;  People  v.  Judges,  2 
Johns.  Cases,  68. 

3  State  v.  Board,  63  Ind.  497;  Mitchell 
v.  Wiles,  59  Ind.  364;  Holliday  v.  Hen- 
derson, 67  Ind.  103;  Burnett  v.  Trus- 
tees, 50  Ind.  251;  State  v.  Norton,  20 
Kan.  506. 

4  Ex  parte  Smyth,  3  A.  &  E.  319, 
722;  State  v.  Watts,  8  La.  (O.  S.)  76; 
Ex  parte  Baily,  2  Cowen,  479. 

5  This  is  nothing  more  than  a  particu- 
lar application   of  the   settled   general 


principle  that  erroneous  decisions  can 
not  be  reviewed  or  corrected  in  an  ac- 
tion brought  to  secure  a  writ  of  manda- 
mus. The  doctrine  is  illustrated  and 
enforced  by  many  decisions,  for  the 
question  has  been  presented  in  many 
phases  and  in  a  great  variety  of  cases. 
Ex  parte  Coster,  7  Cow.  523;  Thomas 
:'.  His  Creditors,  1  Har.  (N.  J.)  272; 
Respublica  v.  Clarkson,  1  Yeates  (2d 
ed.),  46;  Judges  of  Oneida  Common 
Pleas  v.  People,  18  Wend.  79;  People 
v.  Superior  Court,  19  Wend.  68;  Rex  v. 
Conyers,  8  Q^  B.  981;  Wilkins  v. 
Mitchell,  3  Salk.  229.  For  an  able  dis- 
cussion of  the  subject  see  the  opinion  in 
Ex  parte  Morgan,  114  U.  S.  174.  See, 
also,  Ex  parte  Hayes  (Ala.),  9  So.  Rep. 
156;  Ex  parte  Hum  (Ala.),  9  So.  Rep. 
515;  Burt  v.  Reilly,  82  Mich.  251,  46 
N.  W.  Rep.  380;  Tomkin  v.  Harris,  90 
Cal.  201,  27  Pac.  Rep.  202.  Mandamus 
will  not  lie  to  compel  a  court  to  resume 
jurisdiction  of  a  case  dismissed  by  it. 
People  v.  Garnett,  130  111.  340,  23  N.  E. 
Rep.  331;  State  v.  Judges,  etc.,  41  La. 
Ann.  1012,  6  So.  Rep.  S04.  It  is  prob- 
ably true  that  the  rule  as  to  courts  of 
limited  jurisdiction,  such  as  justices  of 
the  peace,  count}'  commissioners  and 
the  like,  is  somewhat  different  from 
that  which  prevails  where  the  decisions 
and  rulings  of  courts  of  general  superior 
jurisdiction  are  involved.  State  v. 
Clayton,  34  Mo.  App.  563,  566;  Dorr  v. 


436 


APPELLATE   l'ROCI.DURE. 


01G.  Mandamus — Cases  in  which  it  will  issue — It  may  be  said 
by  way  of  preface,  although  at  the  expense  of  repetition,  that 
mandamus  will  lie  wherever  there  is  a  clear  right  of  appeal  and 
the  party  has  done  all  that  he  can  to  enforce  the  right  and  as- 
sistance is  required  to  enable  him  to  perfect  his  appeal,  as  well 
as  where  the  writ  is  required  to  secure  the  execution  of  an 
order,  decision,  or  judgment  of  the  appellate  tribunal.  The 
power  to  issue  a  writ  of  mandamus  in  aid  of  appellate  jurisdic- 
tion is  much  more  comprehensive  than  fugitive  expressions  in 
some  of  the  decided  cases  indicate.  The  power  is,  indeed, 
very  closely  akin  to  an  original  one,  but  is,  nevertheless,  an 
attribute  of  appellate  jurisdiction.  It  has  been  held  that  man- 
damus lies  where  the  trial  court  refuses  to  entertain  jurisdiction 
when  it  ought  to  do  so,  or  refuses  to  proceed  with  the  trial  in  a 
case  where  it  is  its  duty  under  the  law  to  proceed.1  The  doc- 
trine stated  is  the  correct  one,  but,  we  venture  to  affirm,  it  is 


Hill,  62  N.  II.  506.  We  are,  however, 
not  dealing  with  appeals  from  courts  of 
limited  statutory  jurisdiction. 

1  Ex  parte  Parker,  131  U.  S.  221,  cit- 
ing Thompson  v.  United  States,  103 
U.  S.  480,  483;  People  v.  Collins,  19 
Wend.  56;  State  v.  Warner.  55  Wis. 
271.  In  the  first  named  case  it  was 
said:  "The  right  of  mandamus  lies  as 
held  in  Ex  parte  Parker,  120  U.  S.  737, 
where  the  inferior  court  refuses  to  take 
jurisdiction  when  by  law  it  ought  to  do 
so,  or  where  having  obtained  jurisdic- 
tion, it  refuses  to  proceed  in  its  exercise. 
It  does  not  lie  to  correct  alleged  errors 
in  the  exercise  of  its  judicial  discretion. 
Ex  partr  Morgan,  114  U.  S.  174; 
Chateauquay  Ore  and  Iron  Co.,  Peti- 
tioner, 128  U.  S.  544,  557.  This  gen- 
eral doctrine  is  pressed  very  far  in  State 
v.  Ellis,  41  La.  Ann.  ji,  6  So.  Rep.  55. 
Schultze  v.  McLearv,  73  Tex.  92,  11 
S  W.  Rep. 924,  il  was  held  that  manda- 
mus will  lie  to  compel  a  special  judge  to 
try  a  cause.  It  has  also  been  held  that 
mandamus  will  lie  to  compel  a  trial 
court  to  reinstate   a  ease.      /;/  re  Parker, 


131  U.  S.  221;  State  v.  Kansas  City 
Court,  97  Mo.  331,  10  S.  W.  Rep.  855. 
We  suppose,  however,  that  the  doctrine 
can  not  obtain  where  the  ruling  refus- 
ing to  reinstate  can  be  fully  reviewed 
on  appeal.  'To  award  a  mandamus 
where  the  error  can  be  reviewed  ami 
corrected  on  appeal  would  violate  the 
elementary  rule  that  mandamus  will 
not  lie  where  there  is  an  adequate  ordi- 
nary remedy,  as  well  as  the  rule  that 
mandamus  will  not  lie  to  correct  or  re- 
view erroneous  rulings  or  decisions. 
See  the  authorities  cited  in  the  notes  to 
the  preceding  paragraph,  and,  Scott  v. 
Yolo  County  Superior  Court,  75  Cal. 
[14;  Wilson  v.  Holt,  85  Ala.  95,  4  So.. 
Rep.  625;  Brown  County  V.  Winona. 
etc.,  Co.,  58  Minn.  397;  In  re  Wilson, 
75  Cal.  580,  17  Pac.  Rep.  69S;  State  V. 
Ellis,  40  La.  Ann.  S18,  5  So.  Rep.  530; 
Slate  v.  District  Judge,  41  La.  Ann.  73, 
5  So.  Rep.  648;  Dixon  v.  Judge,  4  Mo. 
286;  King  v.  Justices,  etc.,  5  Nev.  & 
Man.  139;  People  v.  Judge  of  Wayne 
County.  1   Mich.  359. 


AUXILIARY   PROCEEDINGS. 


437 


carried  too  far  by  some  of  the  courts.  It  seems  to  us  that  it  is 
a  radical  departure  from  principle  to  hold  that  errors  which 
may  be  made  available  on  appeal  may  be  reviewed  and  cor- 
rected in  a  proceeding  to  obtain  a  writ  of  mandamus.  For 
this  conclusion  we  assign  two  reasons,  namely,  where  there  is 
a  right  of  review  by  appeal  there  is  an  adequate  remedy,  and, 
where  errors  occur  in  deciding  or  refusing  to  decide,  they  may 
be  made  available  on  appeal.  Neither  of  these  reasons  ap- 
plies, however,  where  the  court  refuses  to  entertain  jurisdiction 
or  refuses  to  proceed,1  but  they  do  apply  where  the  trial  court 
erroneously  decides  that  it  has  no  jurisdiction,  as  well  as  where 
it  erroneously  decides  that  it  has  jurisdiction.  It  is  manifest 
that  where  a  trial  court  refuses  to  act  the  appellate  court  may 
coerce  a  decision,  for  the  refusal  to  decide  is  an  obstacle  to  the 
exercise  of  the  right  of  appeal  which  the  appellate  tribunal  has 
plenary  power  to  remove.  Upon  the  principle  that  the  appel- 
late tribunal  may  assist  a  party  in  perfecting  an  appeal,  it  is 
rightly  held  that  mandamus  will  lie  to  compel  the  trial  judge  to 


1  This  conclusion  is  probably  opposed 
to  the  doctrine  of  State  v.  Biddle,  36 
Ind.  138,  for  it  seems  to  have  been  held 
in  that  case  that  the  trial  court  could 
not  be  compelled  to  proceed  with  a 
cause.  We  can  not  believe  that  the 
doctrine  stated  in  that  case  is  correct. 
As  indicated  in  another  place,  our 
opinion  is  that  the  case  referred  to  lim- 
its the  scope  of  appellate  jurisdiction 
much  more  than  principle  or  authority 
warrant.  It  must  be  true  that  the  trial 
court  can  be  compelled  to  proceed  with 
a  cause  to  judgment,  for  a  judgment 
must  be  rendered  in  order  to  give  a 
right  of  appeal,  and  the  trial  court  can 
not  nullify  that  right  by  wrongfully  re- 
fusing to  act.  In  compelling  it  to  pro- 
ceed to  judgment  the  appellate  tribunal 
does  no  more  than  remove  an  impedi- 
ment to  the  right  of  appeal.  The  au- 
thorities already  cited  sustain  our  con- 
clusion and  to  those  cited  may  be 
added  People  v.  Swift,  59  Mich.   529; 


Temple  V.  Superior  Court,  70  Cal.  211; 
Ex  parte  Graves,  61  Ala.  381;  Floral 
Springs  Water  Co.  v.  Rives,  14  Nev. 
431;  Beguhl  v.  Swan,  39  Cal.  411;  State 
v.  Cape  Girardeau  Court,  73  Mo.  560; 
State  v.  Horner,  10  Mo.  App.  307; 
Blackberry  v.  People,  10  111.  (5  Gilm.) 
266;  Ex  parte  Thornton,  46  Ala.  384; 
State  v.  Ellis,  41  La.  Ann.  41,  6  So.  Rep. 
55.  If  the  decision  in  State  v.  Biddle, 
supra,  can  be  construed  as  meaning  no 
more  than  that  mandamus  will  not  lie 
where  a  ruling  may  be  made  available 
on  appeal,  or  as  simply  asserting  that 
original  jurisdiction  can  not  be  exercised 
by  the  Supreme  Court  it  may  be  deemed 
correct,  but  if  it  is  to  be  understood  as 
meaning  that  the  Supreme  Court  can 
not  compel  a  trial  court  to  proceed  to 
judgment  it  is  in  conflict  with  the  cases 
cited  and  with  the  case  of  State  v. 
Board,  45  Ind.  501.  See,  also,  Moore 
v.  State,  72  Ind.  35S. 


438 


APPELLATE   PROCEDURE. 


settle  and  sign  the  proper  bill  of  exceptions,  but  it  would  be  a 
violation  of  principle  to  specifically  direct  him  what  to  put  in 
the  bill  in  a  case  where  there  is  a  controversy  as  to  what  the 
bill  should  contain.1  Mandamus  will  lie  to  enforce  a  mandatory 
duty  to  make  a  record  entry,  but  a  fair  deduction  from  the  au- 
thorities cited  is,  that  it  will  not  lie  where  there  is  a  controversy 
of  such  a  character  as  to  require  a  judicial  decision  as  to  what 
the  entry  shall  be,  for  where  there  is  such  a  controversy,  the 
appellate  tribunal  will  not  assume  to  dictate  what  the  decision 
shall  be,  although  it  may  compel  a  decision.2     Upon  the  gen- 


1  Jcllcv  v.  Roberts,  50  Ind.  1;  People 
v.  Anthony,  25  111.  App.Ct.  532;  Che- 
Gong  v.  Stearns,  16  Ore.  219,  17  Pac. 
Rip.  S71;  Poteet  v.  County  Commis- 
sioners, 30  W.  Va.  58,  3  S.  E.  Rep.  97; 
/;/  re  Chateaugaj'  Ore  and  Iron  Co.,  128 
I  S.  544;  Cummings  v.  Armstrong,  34 
W.  Va.  1,  11  S.  E.  Rep.  742;  People  v. 
Hawes,  25  111.  App.326;  State  v.  Field, 
37  Mo.  App.  S3;  /;/  re  \ 'anvabry  v. 
Staton,  SS  Tenn.  334,  12  S.  W.  Rep.  786; 
Ex  parte  Henderson,  84  Ala.  36,  4  So. 
Rep.  2S4.  Where  the  trial  judge  set- 
tles and  signs  a  bill  of  exceptions  the 
court  will  not  award  a  peremptory 
mandamus.  Tbis  was  so  decided  after 
full  consideration  in  Jelly  v.  Roberts, 
supra.  A  like  conclusion  was  affirmed 
by  the  Supreme  Court  of  Illinois  in  the 
case  of  Peoples.  Anthony,  129  111.  218, 
21  X.  E.  Rep.  780.  See,  also,  Tweed  v. 
Davis,  4  Thomp.  &  C.  (N.  Y.)  1.  See, 
also,  Ex  parte  Bradstreet,  4  Pet.  102; 
Ex  parleStory,  12  Pet. 339.  Ifthe  judge 
does  not  answer, or  if  his  answer,  or  re- 
turn, is  insufficient,  a  peremptory  writ 
will  be  awarded.  Springer  v.  Peterson, 
1  Blackf.  188;  State  v.  Hawes.  43  Ohio 
St.  16.  See,  generally,  Conrow  v. 
Schloss,  55   Pa.  St.  28;    People  v.  Lee, 

al.  510;    Ex  parte  Crane,  5  Pet.  190; 
Mi  Donald,  30  Minn.  98;   State 
v.  Sheldon,  2  Kan.  322. 

2  The  conclusion  that  the  appellate 
tribunal  will  not  assume  to  decide  what 


the  particular  entry  shall  be  where  there 
is  a  dispute,  is  fortified  by  the  rule  that 
an  appeal  will  lie  from  a  refusal  to  make 
a  nunc  pro  tunc  order  in  the  proper 
case.  Ante,  §  -[4.  and  authorities  cited. 
As  an  appeal  will  lie  the  error  may  be 
corrected  in  an  ordinary  proceeding, 
and  resort  can  not  be  had  to  the  ex- 
traordinary remedy.  Marshall  v.  State, 
1  Ind.  72;  Board  v.  llieks,  2  Ind.  527; 
State  v.  Board,  25  Ind.  210;  State  v. 
Board,  45  Ind.  501;  Harrison  School  Tp. 
v.  McGregor,  96  Ind.  185;  White  v.  Bur- 
kett,  119  Ind.  431;  State  v.  County 
Judge,  5  la.  380;  Peoples.  Hawkins,  46 
N.  Y.  9;  Poindexter  v.  Greenhow,  84 
Va.  441;  Ex  parte  Stickney,  40  Ala. 
160;  Territory  v.  Shearer,  2  Dak.  332; 
Moody  v.  Fleming,  4  Ga.  115,  S.  C.  48 
Am.  Dec.  210;  Ex  parte  Virginia  Com 
missioners,  112  U.  S.  177;  State  v. 
Rightor,  36  La.  Ann.  112;  State  v.  Me- 
gown,  89  Mo.  [56;  Hemphill  v.  Collins, 
117  111.  396;  State  v.  Justices  of  Mocre 
County,  2  Ired.  L.  430.  The  only  con- 
sistent doctrine  is  that  which  restricts 
the  right  to  the  writ  to  cases  where 
there  is  no  dispute  as  to  the  character 
of  the  entry  or  no  right  to  make  the 
question  on  appeal.  Leavitt  t.  Judge 
of  Superior  Court,  52  Mich.  595.  The 
right  to  make  the  question  on  appeal 
is  an  element  of  controlling  influence. 
Ex  parte  King,  27  Ala.  387;  Ex  parte 
Hughes,  1 14  U.  S.  147;    Ex  parte  Hoyt, 


AUXILIARY   PROCEEDINGS. 


439 


eral  principle  that  a  function  of  appellate  jurisdiction  is  to  assist 
parties  rightfully  entitled  to  prosecute  an  appeal  to  perfect  the 
appeal  by  coercing  the  performance  of  duty  by  ministerial,  as 
well  as  by  judicial  officers,  mandamus  will  lie  to  compel  the 
signing  of  the  proper  record  and  the  certification  of  the  neces- 
sary transcript.1  Within  this  general  principle  as  to  the  wrongful 
denial  of  an  appeal,  or  the  wrongful  interposition  of  obstacles 
to  the  prosecution  and  perfecting  of  the  appeal  fall  many  par- 
ticular instances.2  While,  as  we  have  elsewhere  said,  manda- 
mus can  not  rightfully  be  made  to  take  the  place  of  a  writ  of 
error  or  of  an  appeal,  it  may,  nevertheless,  be  employed  to  put 
the  case  in  a  situation  to  appeal,  and,  to  do  this,  it  may  lie  to 
compel  the  trial  court  to  make  and  enter  a  decision  3  It  is  quite 
clear  that  mandamus  will  lie  to  compel  the  trial  court  to  obey 
the  directions,  instructions  and  judgments  of  the  appellate  tri- 
bunal,4 for  in  such  cases  the  duty  is  a  mandatory  one  and  the 
trial  court  has  no  discretion  to  exercise. 

§  517.   Mandamus — Matters  of  Practice — Mandamus  is  an  ex- 
traordinary remedy  and  not  a  writ  of  right.5     A  party  who  asks 

13  Pet.  279;  Bank   v.  Sweeney,  1  Pet.  Field,  37  Mo.  App.  83;  York  v.  Ingham 

567;  Ex  parte  De  Groot,  6  Wall.  497.  Circuit  Judge,  57  Mich.  421,  24  N.  W. 

1  United  States  v.  Gomez,  3  Wall.  Rep.  157;  £»  /«rfe  Newman,  14  Wall. 
752;   State  v.  Wallace,  41  Ind.  445.  152;  Life,  etc.,  Ins.  Co.  v.  Adams,  9  Pet. 

2  It  will  lie  to  compel  the  signing  of  a  573;  Ex  parte  Railway  Co.,  103  U.  S. 
judgment.  Life,  etc.,  Ins.  Co.  v.  Ad-  794;  Ex  parte  Baltimore,  etc.,  Co.,  10S  U. 
ams,  8  Pet.  306;  Life,  etc.,  Co.  v.  Wilson,  S.  566;  White  v.  United  States,  1  Wall. 
8  Pet.  291.  It  will  coerce  the  entry  of  a  660;  State  v.  Murphy,  41  La.  Ann.  526, 
judgment.  State  v.  Engle,  127  Ind.  457,  6  So.  Rep.  816.  The  merits  of  a  cause 
26  N.  E.  Rep.  1077.  A  clerk  can  not  can  not  be  determined  upon  an  auxil- 
question  the  correctness  of  the  minutes  iary  application  for  mandamus.  State 
of  the  judge  in  a  case  where  an  applica-  v.  King,  42  La.  Ann.  77,  7  So.  Rep.  72; 
tion  is  made  for  a  mandamus  to  compel  Shine  v.  Kentucky,  etc.,  Co.,  85  Ky.  177, 
him  to  make  out  a  transcript.     State  v.  3  S.  W.  Rep.  18. 

Mayo,  42  La.  Ann.  C37,  S  So.  Rep.  52;  *  Perkins  v.  Fourniquet,  14  How.  (U. 

State  v.  Cressinger,  88   Ind.  499.     See,  S.)  32S;  Ex  parte  Sawyer,  21  Wall.  235; 

generally,  Stafford  v.  Union  Bank,  17  Ex  parte  Railway  Co.,   101  U.  S.  711. 

How.  (U.  S.)  275;  Quan  Wo  Chung  v.  See,  generally,  Ex  parte  Roberts,   11; 


Laumeister,  83   Cal.  384,   23  Pac.  Rep. 
3-0. 

3  Ante,  §  516;  People  v.  District  Court 
Arrapahoe  Count}*,  14  Col.  396,  24  Pac. 
Rep.  260;  Ex  parte  Alabama  State  Bar 
Asso.  (Ala.),  S  So.  Rep.  76S;   State  v. 


Wall.  3S4;  Ex  parte  United  States,  16 
Wall.  699;  Jared  v.  Hill.  1  Blackf.  155. 
5  Durand  v.  Gage,  76  Mich.  624,  43 
N.  W.  Rep.  5S3;  State  v.  Flad,  26  Mo. 
App.  500;  Holborn  Union  v.  St.  Leon- 
ard's Parish,  2  Q^  B.  D.  145,   149;    Ex 


440 


APPELLATE   PROCEDURE. 


that  the  writ  be  awarded  him  must  make  a  very  strong  case.1 
The  rule  stated  applies  even  in  ordinary  cases,  but  there  is  a 
stronger  reason  for  its  application  in  a  case  where  the  writ  is 
asked  to  coerce  action  by  a  judge  of  a  court  of  general  superior 
jurisdiction,  for  the  strong  presumption  is  that  he  has  performed 
'  his  duty  fully  and  faithfully.2  A  verified  petition  is  required, 
and  the  petition  must  show  a  clear  right  to  the  relief  prayed. 
It  must  show  diligence  and  that  the  petitioner  has  left  nothing 
undone  which  it  was  incumbent  upon  him  to  do,  or  show  that 
the  judge,  or  other  officer,  wrongfully  prevented  him  from 
doing  what  the  law  required  him  to  do.3  It  is,  of  course,  nec- 
essary to  plead  the  facts  fully  and  positively  and  not  by  way  of 
mere  conclusions  or  recitals.  The  facts  pleaded  must  show  the 
judge  or  officer  to  be  in  the  wrong,4  that  the  petitioner  is  in  the 
right,  and  that  he  has  placed  himself  in  a  position  to  ask  assist- 
ance from  the  appellate  tribunal.  Where  a  transcript  can  be 
procured  it  should  be  filed  before  or  at  the  time  of  applying  for 
the  mandamus,  for  the  party  must  proceed  as  far  as  he  can 
without  assistance,  and  he  must  show,  as  far  as  in  his  power,  a 
willingness  and  an  attempt  to  get  the  case  into  the  appellate 


parte  Commissioners,  112  U.  S.  177; 
Knox  County  v.  Aspinwall,  24  How. 
(U.  S.)  376;  Kentucky  v.  Denison,  24 
How.  (U.  S.)  66;  Gardner  v.  Hanej,  86 
Ind.  17;  City  of  Indianapolis  v.  Mc- 
Avoy,86  Ind.  587;  Shelby  Tp.  v.  Ran- 
dies, 57  Ind. 390. 

1  State  v.  McCabe,  74  Wis.  481,  43  N. 
W.  Rep.  322;  State  V.  Williams.  99  Mo. 
291,  12  S.  W.  Rep.  905;  State  v.  Knight, 
31  So.  Car.  81,  9  S.  E.  Rep.  692;  Bay 
ard  v.  United  States,  127  U.  S.  246; 
State  v.  Kinkaid,  23  Neb.  641,  37  N.  W. 
Rep.  612.  In  the  appellate  tribunal  the 
writ  is  issued  in  aid  of  the  appellate  ju- 
risdiction, and  only  in  clear  cases. 
Riggs  v.  Johnson  County,  6  Wall.  166; 
United  States  v.  Boutwell,  17  Wall. 604. 

2  Vanvabry  v.  Staton,  8S  Tenn.   331. 
12  S.  W.  Rep.  786;  Cummings  v.  Arm- 

ng,  34  W.  Va.  1,  11  S.  E.  Rep.   742. 
The  party  must  show  a  right  to  a  decision 


and  a  wrongful  refusal.  Where  there  is  a 
decision  it  must  be  challenged  upon  ap- 
peal or  by  a  writ  of  error,  not  by  man- 
damus. Ex  parte  Koon,  1  Denio,  644; 
People  v.  Justices,  20  Wend.  663;  Ex 
parte  Ostrander,  1  Denio,  679;  People 
v.  Tracy,  1  Denio,  617;  Peralta  v.  Ad- 
ams, 2  Cal.  594;  Ex  parte  Milner,  6 
Eng.  Law  tV  Equ.  371;  County  Court 
of  Warren  v.  Daniel,  2  Bibb.  573;  Ex 
parte  Taylor,  14  How.  (U.  S.)  3;  Ex 
parte  Bacon,  6  Cowen,  392. 

3  Unexplained  delay  will  be  fatal  to 
the  application,  for  the  law  exacts  dili- 
gence.    State  v.  Dyer,  99  Ind.  426. 

4  It  is  upon  this  principle  that  it  was 
held  thai  the  party  asking  the  extraor- 
dinarv  relief  must  show  a  demand  or 
request.  State  v.  Slick,  S6  Ind.  501. 
See,  generally,  Ingerman  v.  State,  128 
Ind.  225,  and  authorities  cited. 


AUXILIARY   PROCEEDINGS.  441 

tribunal.1  A  party  who  asks  a  mandamus  where  there  is  a 
pending  appeal  invokes  an  extraordinary  remedy,  but  when  he 
asks  it  where  there  is  no  pending  appeal  he  asks  the  court  for 
extraordinary  relief  in  an  unusual  case,  and  hence  must  show  a 
very  clear  right  to  the  relief;  this  he  can  not  do  without  showing 
that  he  has  left  nothing  undone  that  he  could  do  without  assist- 
ance. If  he  can  unassisted  take  such  steps  as  secure  a  pending 
appeal,  he  is  bound  to  do  so,  but  if  he  can- not  proceed  that  far 
he  may  ask  assistance,  since  the  court  will  not  allow  his  right 
of  appeal  to  be  defeated  or  its  jurisdiction  to  be  wrongfully  im- 
paired. It  may  be  added  that  a  party  who  has  no  pending  ap- 
peal can  not  obtain  mandamus  without  showing  sufficient  reason 
why  his  case  constitutes  an  exception  to  the  general  rule.  If  no 
such  reasons  are  shown  the  general  rule  will  prevail.2 

§  518.  Prohibition — The  rules  which  govern  the  writ  of  pro- 
hibition are  similar  to  those  which  prevail  in  proceedings  to  ob- 
tain a  writ  of  mandamus  from  an  appellate  tribunal.  The  writ 
of  prohibition  may  be  employed  by  an  appellate  tribunal  to 
prevent  an  unlawful  invasion  of  its  jurisdiction,  and  to  prevent 
a  wrongful  interference  with  its  records.  The  writ  can  not  be 
made  to  take  the  place  of  an  appeal  or  of  a  writ  of  error.3  Er- 
rors available  on  appeal  can  not  be  made  available  upon  a  pe- 
tition for  a  writ  of  prohibition,  any  more  than  they  can  be  upon 
a  petition  for  a  mandamus.  Under  a  system  such  as  ours  prohi- 
bition can  seldom  be  an  appropriate  remedy  where  the  action 
of  a   court  of  superior  general  jurisdiction  is  sought  to  be  con- 

1  Hawes  v.  People,  124  111.  560,  17  N.  It  is  held  that  where  there  is  jurisdiction 
E.  Rep.  13.  We  cite  this  case  as  show-  in  the  lower  court  prohibition  will  not 
ing  that,  as  a  general  rule,  an  appellate  issue  to  control  its  proceedings.  State 
tribunal  will  not  issue  a  mandamus  v.  Judge  of  the  Superior  Court,  29  La. 
where  there  is  no  pending  appeal.  Ann.   360.     But    it   is    also   held   that 

2  As  illustrating  the  general  doctrine  where  there  is  no  jurisdiction  the  writ 
of  the  text,  see  Hoxie  v.  County  Com-  may  be  awarded.  Swinburn  v.  Swift, 
missioners,  25  Me.  333;  Sikes  -'.Ran-  15  W.  Va.  4S3.  See  Bacon's  Abridg. 
som,  6  Johns.  279;  Midberry  v.  Col-  Title  Prohibition,  3  Blackstone's  Com. 
lins,  9  Johns.  345;  State  v.  Tool,  4  112;  Smith  v.  Whitney,  116  U.  S.  167, 
Ohio  St.  553;  Gray  v.  Bridge,  11  Pick.  174;  Thomson  v.  Tracy,  60  N.  Y.  31; 
189;  Squier  v.  Gale,  1  Halst.  (N.  J.  L.)  Connecticut,  etc.,  Co.  v,  Franklin 
157.  County  Commissioners,  127  Mass.  50. 

3  Home  v.  Camden,  2  H.  Bl.  533,  536. 


442 


APPELLATE   PROCE] 


trolled,  for  decisions  upon  the  question  of  jurisdiction  may  be 
reviewed  on  appeal.1  We  suppose,  notwithstanding  some  of  the 
expressions  used  in  the  case  referred  to  in  the  note,  that  there 
may  be  cases  where  a  writ  of  prohibition  will  issue  to  a  trial 
court  although  it  may  have  jurisdiction  of  the  general  subject, 
as.  for  instance,  in  a  case  where  the  trial  court  attempts  to  do 
something  positively  forbidden  by  the  directions  or  instructions 
contained  in  the  mandate  of  the  appellate  tribunal.  It  is  the 
imperative  duty  of  the  trial  court  to  obey  the  mandate,  and  the 
appellate  tribunal  must  necessarily  have  power  to  coerce  obedi- 
ence by  mandamus  or  by  prohibition. 


1  Board  of  Commissioners  v.  Spitler, 
13  Ind.  235.  In  the  case  cited  it  was 
said:  "This  exposition  of  the  causes 
for  which  a  writ  of  prohibition  may 
issue  at  common  law,  at  once  shows 
that  under  our  system  of  procedure,  it 
can  only  be  used  for  one  cause,  namely 
to  command  the  judge  and  parties  of  a 
suit  in  an  inferior  court  to  cease  the 
prosecution  thereof,  upon  a  suggestion 
that  the  case  originally,  or  some  col- 
lateral matter  arising  therein,  does  not 
belong  to  that  jurisdiction,  but  to  the 
cognizance  of  some  other  court.  If  this 
position  be  correct,  and  we  think  it  is, 
the  writ  of  prohibition  in  this  instance 


was  not  the  proper  remedy,  because 
the  Board  of  Commissioners  of  Jasp,  r 
county  had,  in  the  case  pending  before 
it,  original  and  exclusive  jurisdiction. 
Indeed,  we  perceive  no  reason  why  the 
party,  instead  of  prosecuting  the  writ 
in  question,  did  not  adopt  the  usual 
remedy  of  appeal."  We  think  the  de- 
cision from  which  we  have  quoted  a 
sound  one,  for  under  the  American 
system,  as  it  generally  prevails,  a  de- 
cision affecting  the  question  of  jurisdic- 
tion may  be  reviewed  in  an  ordinary 
appeal  and  hence  there  is  no  reason  for 
resorting  to  the  extraordinary  remedy. 


CHAPTER  XXVI. 

DISMISSAL  AND  REINSTATEMENT. 

4  519.    The  motion   to  dismiss  the  ap-  §  528.    Two  appeals. 

peal  is  generally  a  preliminary  529.    Appeal  from  judgment  rendered 

motion.  in   obedience   to  the  mandate 

520.  The   court   may  dismiss   on   its  remanding  the  case. 

own  motion.  530.    Bill  of  review. 

521.  Second   motion   to  dismiss   not         531.    Parties  to  the  motion  to  dismiss. 

entertained.  532.  Requisites  of  the  motion. 

522.  Merits    not   considered   on    the  533.  Notice  of  the  motion  to  dismiss. 
-  motion  to  dismiss.  534.  Dismissal  by  the  appellant. 

523.  Failure  to  comply  with  the  rules  535.  Effect  of  a  dismissal. 

of  the  court.  536.    Withdrawing  the  transcript. 

524.  Failure   to    perfect   the    appeal         537.    Reinstatement — The   power   to 

within  the  time  prescribed.  order. 

525.  Failure  to  give  notice.  538.  Cause  must  be  shown. 

526.  No  appealable  interest.  539.  Noticeof  the  motion  to  reinstate. 

527.  Failure  to  file  a  bond.  540:  Practice  on  motion  to  reinstate. 

§  519.  The  Motion  to  Dismiss  the  Appeal  is  generally  a  Preliminary 
Motion — A  motion  to  dismiss  the  appeal  is  usually,  but  not  al- 
ways, a  preliminary  motion.  In  most  cases  it  should  be  inter- 
posed before  a  general  appearance  is  entered.1  Many  causes 
available  on  a  motion  to  dismiss,  in  cases  where  the  motion  is 
promptly  made,  and  made  before  a  general  appearance,  are 
unavailable  where  there  is  delay  or  a  full  appearance.2  A  sate 
general  rule  is  to  move  to  dismiss  before  appearing  generallv 
and  to  interpose  the  motion  promptly,  otherwise  the  causes  as- 
signed may  be  regarded  as  waived.  The  doctrine  of  waiver 
exerts  an  important  influence  upon  motions  to  dismiss  the  ap- 

1  Peoples  Bank  7'.  Finney,  63  Ind.  460;         2  Walker  v.  Hill,  1 11   Ind.  223;   State 

Archey  v.  Knight,  61  Ind.  311;  Bender  v.  Walters,  64  Ind.  226:    Field   v.  Bur- 

v.  Wampler,  84  Ind.   172;   Ridenour  v.  ton,  71   Ind.  3S0;  Truman  v.  Scott,  72 

Beekman,  68   Ind.   236;  Beck  v.  State,  Ind.  258;  Brooks  v.  Doxey.  72  Ind.  327: 

72  Ind.  250;  Burnett  v.  Abbott,  51  Ind.  West  v.  Cavins.  74  Ind.  265;   Lloyd   v. 

254.      The    exceptions    to    the    general  Reynolds.  26  Neb.  63,  41    N.  W.  Rep. 

rule  stated  are  rare.  1072. 

(443) 


_j44  A.PPELLA  I  i:   PROCEDURE. 

peal,   and   delay  will   often  give  effect  to  that  doctrine  to  the 
injury  of  the  appellee. 

§  520.  The  Court  may  Dismiss  on  its  own  Motion — Where  it  ap- 
pears  that  there  is  no  jurisdiction  the  court  will  dismiss  the  ap- 
peal on  its  own  motion.  If  there  is  no  jurisdiction  of  the  sub- 
ject the  appeal  will  be  dismissed  by  the  court  at  any  stage  of 
the  proceedings.1  Where  there  is  no  final  judgment,  and  the 
case  is  not  one  in  which  an  appeal  lies  from  an  interlocutory 
judgment,  the  court  will  not  entertain  the  appeal  but  will  di- 
rect a  dismissal.2  So,  where  the  record  shows  that  there  is  no 
actual  controversy  but  a  mere  feigned  case,  the  court  may,  on 
its  own  motion  dismiss  the  appeal.3  And  the  court  may.,  upon 
the  same  principle,  dismiss  an  appeal  where  it  appears  that  the 
controversy  has  fully  terminated.1  But  a  party  is  not  bound  to 
act  upon  the  assumption  that  the  court  will,  of  its  own  motion, 
dismiss  the  appeal,  so  that  it  is  always  proper  for  him  to  move 
for  a  dismissal  in  such  cases  as  those  indicated,  and,  it  may  be 
added,  it  is  generally  safer  for  him  to  make  the  proper  motion. 

§  521.  Second  Motion  to  Dismiss  not  Entertained — A  second  mo- 
tion to  dismiss  an  appeal  based  upon  the  same  grounds  as  those 


1  New  Orleans  v.  Scalzo,  41  La.  Ann.  2  Reese  v.  Beck,  9  Ind.  238;  Miller  v. 

1 141;    Robinson  v.  Oceanic,  etc.,  Co.,  State,  8  Ind.  325;  Taylor  v.  Board,  120 

112  N.  Y.  315;   Doctor  v.  Hartman,  74  Ind.  121.     See  "From  what  an  appeal 

Ind.  221;     Smith  v.  Myers,   109  Ind.  1,  maybe  taken."    Ante,  Chapter  V.    See, 

9;     Robertson  v.   Smith,    109   Ind.    79;  also,  Wilcox   :\   Wilcox   (Vt.),  21   Atl. 

United  States  v.  Yates,  6  How.  (U.  S.)  Rep.  423;  Laiwdley  v.  Kline,  21  W.Va. 

605;     Breidert  v.  Krueger,  76  Ind.  55;  21;     Bacas  v.  Smith,  ^  La.  Ann.   139; 

Louisville,  etc.,  Co.  :•.  Jackson,  64  Ind.  Hoover  :\  York,  33  La.  Ann.  652;  Cars- 

39S;   Evansville,  etc.,  Co.  v.  Barbee,  59  well  r.Crowther  (Texas),  i6S.W.Rep. 

Ind.  502;     United    StaU-s  v.   Morillo,  I  172;   Fitzgerald  :■.  Evans,  53  Texas,  461. 

Wall.  706;   Parker  v.  Morrill,  106  U.S.  3  United   States  v.  Phillips,  6  Peters, 

1.     See  ".Questions   that  may    be   first  776;     Peck  v.  Young,   1    How.   (U.  S.) 

made  on  appeal."     Ante,  Chapter  XX.  250;    Cartwright  v.  Howe,  1  How.  (U. 

See,  also,  Hart   v.   Burch,  31    111.  App.  S.)  18S;  San  Mateo  County  v.  Southern 

22.  S.  C.  22   N.  K.  Rep.  831;     Rohn  v.  Pacific  R.  R.  Co.,  116  U.  S.  13S. 

Harris.  31    111.  App.  26,  S.  C.  22   X.   E.  *  Schmohl  v.  Fusco,  13  N.  Y.    Supp. 

Rep.  ;S;;    Douglass  v.  Neguelona,  8S  5S3. 
Tenn.  ;'»;,  14  S.  W,  Rep.  2S3. 


DISMISSAL  AND   REINSTATEMENT.  445 

assigned  in  the  first  motion  will  not  be  entertained.1  The  rea- 
son for  this  rule  is  obvious.  Nor  will  a  second  motion  be  en- 
tertained upon  new  reasons  unless  it  appears  that  diligence  and 
care  would  not  have  enabled  the  party  to  discover  and  present 
such  new  reasons  in  the  first  instance.  The  court  may,  of 
course,  enter  a  -pro  forma  order  provisionally  overruling  the 
motion  to  dismiss  and  subsequently  consider  it.2  The  practice 
of  our  court  has  been  to  hold  motions  to  dismiss  an  appeal 
which  present  special  difficulties  or  which  require  a  full  ex- 
amination of  the  record  until  the  case  is  taken  up  for  final  con- 
sideration. It  is  barely  proper,  at  all  events,  hardly  necessary, 
to  add  that  the  matter  is  one  largely  within  the  discretion  of  the 
court. 

§  522.  Merits  not  considered  on  the  Motion  to  Dismiss — A  motion 
to  dismiss  does  not  involve  any  questions  concerning  the  merits 
of  the  controversy  ;  it  simply  brings  in  question  the  effective- 
ness of  the  appeal.  On  such  a  motion  the  court  will  only  in- 
quire whether  the  appeal  lies  and  whether  it  is  properly  taken 
and  perfected.  It  will  not  decide  any  question  affecting  the 
merits  of  the  controversy  upon  the  motion  to  dismiss.3 

§  523.  Failure  to  Comply  with  the  Rules  of  the  Court— It  is  evi- 
dent  from   the   authorities  referred  to   in  the  preceding  para- 

1  Stevens  ?'.  Higginbothanv(  Utah),  23  above  mentioned,  and  these  questions 
Pac.  Rep.  757;  Bingham  v.  Brumback,  are  made  to  depend  upon  the  consider- 
24  111.  App.  332;  Tyrrell  v.  Baldwin,  ation  of  the  pleadings  and  proofs.  These 
78  Cal.  470,  21  Pac.  Rep.  116.  See  questions  should  be  discussed  in  the 
Truelock  v.  Friendship  Lodge,  75  la.  argument  when  reached  in  regular  or- 
3S1,  39  N.  W.  Rep.  654.  der.     To  dispose  of  such  questions  on  a 

2  Green  v.  Ronen,  62  Iowa,  89.  motion  to   dismiss   is   to  dispense  with 

3  Swasey  v.  Adair,  S3  Cal.  136,  23  Pac.  the  rules  prescribed  for  the  orderly  dis- 
Rep.  2S4;  Hill  v.  Chicago,  etc.,  Co.  129  position  of  appealed  cases.  We  cannot 
U.  S.  170;  Graham  v.  Board,  25  Ind.  countenance  such  a  course  and  thereby 
333;  Hooper  v.  Beecher,  109  N.  Y.  609.  open  up  a  short  cut  for  the  resort  of  lit- 
In  the  case  last  cited  the  court,  in  speak-  igants  anxious  to  gain  an  earlier  hear- 
ing of  a  motion  to  dismiss  upon  the  ing  from  us  than  they  are  entitled  to 
ground  that  there  was  no  merit  in  the  have  by  the  rules."  See,  also,  State  v. 
appeal,  said:  "The  judgment  is  final  Bradley,  29  Mo.  App.  366;  Dzialvnski 
and,  therefore,  appealable.  The  legal  v.  Bank  ofjacksonville,  23  Fla.  44,  1  So. 
questions  involved  are  the  validity  or  Rep.  338;  Burke  v.  Pepper,  29  Neb.  320, 
invalidity  of  an  assignment  for  the  ben-  45  N.  W.  Rep.  466;  State  :\  Prater,  26 
efit  of  creditors  made  and  executed  as  So.  Car.  613. 


11(5 


APPELLATE   PROCEDURE. 


graphs  and  from  the  principles  there  stated,  that  a  motion  to  dis- 
miss must  assign  some  cause  or  sour-  reason  which  establishes 
the  claim  that  the  appeal  will  not  lie  or  that  some  step  essential 
to  the  effectiveness  of  the  appeal  has  not  been  taken  in  the 
manner  and  within  the  time  prescribed  by  the  statute  or  by  the 
rules  of  practice.  It  is  not  enough  to  comply  with  the  statutory 
commands  or  the  common  law  requirements,  for  the  rules  es- 
tablished by  the  court  must  also  be  complied  with  or  the  appeal 
may  be  dismissed.1  Our  decisions  have  not  given  such  strict 
effect  and  force  to  the  rules  of  the  court  as  the  courts  elsewhere 
have  done,  and  it  is,  perhaps,  to  be  regretted  that  the  court 
has  been  so  lax  in  the  enforcement  of  its  rules.  We  venture  to 
say  that  it  is  much  better  and  much  more  satisfactory  to  strictly 
and  uniformly  enforce  the  rules  than  to  spasmodically  relax  them 
and  now  and  them  rigidly  enforce  them.  Our  court  has  en- 
forced the  rules  respecting  the  filing  of  briefs2  with  considera- 
ble strictness,  but  the  rules  in  other  respects  have  not  been 
very   strictly  enforced.     It  is,  as  the  authorities   to  which  we 


1  Whitehurst  v.  Pettipher,  105  N.  C. 
39,  10  S.  K.  Rep.  857;  Avery  v.  Pritch- 
ard,  106  N.  C.  344;  Dodd  v.  Bowles,  3 
Wash.Ty.  11.  13  Pac.  Rep.  6S1;  Griffin 
v.  Nelson,  [06  N.  C.  235.  11  S.  E.  Rep. 
414;  Gant  -■.  Tiinmons,  78  Tex.  11,  14  S. 
\V.  Rep.  236;  Ashe  v.  Glenn,  33  So.  Car. 
606;  Armijo  v.  Abeytia  (New  Mex.),  25 
Pac.R0p.777;  Martin  v.  Nugent  (Mo.), 
[5  S.  W.  Rep.  422;  Pearson  v.  House- 
hold, etc.,  Co.,  78  Tex.  385,  1 1  S.W.Rep. 
890;  Veronee  v.  Bell  (So.  Car.),  12  S. 
E.  Rep.  664;  Randolph  v.  Ilahn,  33  So. 
Car.  609,  12S.  E.  Rep. 600;  Dial  v.  Dial, 
^  So.  Car.  306,  12  S.  E.  Rep.  474;  1 1  in 
ton  v.  Pritchard,  107  N.  C.  128,  12  S.  E. 
Rep.  242;  People  v.  Flack,  15  Daly,  442; 

Murphy  V.    ko>s.  2    Wash.   327.  26   Pac. 

Rep.  222:  Donahue  v.  Enterprise 
Co.,  33  So.  Car.  608.  12  S.  E.  Rep.  out;. 
These  eases,  to  which  many  more  might 
:asily  added,  prove  that  the  failure 
to  comply  with  the  rules  of  the  court 
makes  a  dismissal  necessary — not  mere- 


ly proper.  This  is  the  only  consistent 
doctrine. 

2  Deford  v.  Urbain,  42  Ind.  470; 
Stephens  v.  Stephens,  51  Ind.  542; 
Cutler  v.  State,  62  Ind.  39S;  Gardner 
v.  Stover,  43  Ind.  350;  Murray  v.  Wil- 
liamson, 79  Ind.  287.  It  has  enforced 
the  rule  as  to  briefs,  although  some 
brief  has  been  filed,  but  not  such  as  the 
rule  requires.  Harrison  v.  Hedges,  6S 
Ind.  266;  Bray  :•.  franklin  Co.,  60  Ind. 
6;    Northwestern,  etc.,  Co.   v.  Hazelett, 

105  Ind.  212;   Landwerlen  v.  Wheeler, 

106  Ind.  523;  Louisville,  etc.,  Co.  v. 
Donnegan,  11  1  Ind.  179;  Henderson  v. 
Burch,  10  Ind.  54;  Couse  v.  Havens,  44 
Ind.  2S2;  Zehnor  v.  Crull,  10  Ind.  5^7. 
But  as  to  other  matters,  as  for  instance, 
making  marginal  notes  on  transcript, 
the  practice  has  not  been  uniform. 
O'.Neil  v.  Chandler,  42   Ind.  471;   Bass 

Doerman,    112    Ind.   390;    Beigh   v. 
Smarr,  62  Ind.  400. 


DISMISSAL   AM)   REINSTATEMENT. 


44 


have  referred  very  clearly  show,  not  only  proper  to  dismiss  an 
appeal  for  a  failure  to  comply  with  the  rules  of  the  court,  but  it 
is  a  duty.  The  rules  constitute  the  law,1  and  can  not  be  disre- 
garded. 

§  524.    Failure  to  perfect  the  Appeal  within  the  Time  Prescribed — 

In  a  former  chapter  we  considered  at  length  the  rules  which 
govern  as  to  the  time  within  which  an  appeal  must  be  taken, 
and  affirmed  that  the  provisions  of  the  law  limiting  the  time 
within  which  an  appeal  may  be  taken  are  mandatory.2  We 
declared,  also,  that  all  the  essential  steps,  and  not  merely  some 
of  them,  must  be  taken  within  the  time  designated  by  the  law. 
It  results  from  the  doctrines  stated  that  if  an  appeal  is  not  per- 
fected by  doing  all  that  the  law  commands  within  the  time 
fixed,  the  court  should  dismiss  it,  and  so  the  authorities  declare.3 


1  Ante,  §  7,  and  authorities  cited  in 
the  notes.  It  seems  to  us  that  it  is  the 
duty  of  the  court  to  uniformly  and 
strictly  enforce  its  rules,  and  this  is  the 
doctrine  of  some  of  our  own  cases,  and 
should  be  of  all,  but  it  is  not,  for  the  de- 
cisions are  conflicting.  Beigh  v.  Smarr, 
supra;  Bass  t1.  Doerman,.?K/r«;  Bow- 
man v.  Simpson,  6S  Ind.  229;  Kiley  v. 
Perrin,  69  Ind.  3S7;  Contra  Mitchell  v. 
American  Ins.  Co.,  51  Ind.  396;  True- 
blood  v.  Nicholson,  52  Ind.  420,  and 
cases  cited  in  preceding  note. 

2  Ante,  Chapter  VI.  See,  also,  Whit- 
sitt  v.  Union,  etc.,  Co.,  122  U.  S.  363. 

3  Holloran  v.  Midland,  etc.,  Co. (Ind.), 
28  X.  E.Rep.  549,  and  cases  cited;  Vito- 
reno  v.  Corea  (Cal.),  25  Pac.  Rep.  420; 
Hull  v.  Westcott,  17  Fla.  2S0;  Page  v. 
Latham,  60  Cal.  601 ;  Heinlen  v.  South- 
ern, etc.,  Co.  65  Cal.  304;  N.  P.  Termi- 
nal Co.  v.  Lowenberg,  11  Oregon  2S6; 
Struber  v.  Rohlfs,  36  Kan.  202;  Kasson, 
v.  Follett,  9  Col.  34S;  Judge  v.  Ohm,  89 
Cal.  134,  26  Pac.  Rep.  694;  State  v. 
James  (N.C.),  13  S.  E.  Rep.  112;  Joseph 
Schnaider's  Brewing  Co.  v.   Lewie,  41 


Mo.  App.  584;  Williams  v.  Hutchinson 
(Fla.),  7  So.  Rep.  S52;  Sturtevant  v. 
Wineland,  22  Neb.  702,  36  N.  W.  Rep. 
277;  Talbird  t'.Whippee,  31  So.  Car. 600, 
9  S.  E.  Rep.  742;  Pregnall  v.  Miller,  26 
So.  Car.  612,  7  S.  E.Rep.  71;  Gulf,  etc., 
Co.  v .  Edwards,  72  Tex.  303,  10  S.  W. 
Rep.  525;  Williams  v.  La  Penotiere,  25 
Fla.  473,  6  So.  Rep.  167;  Glos  v.  Ran- 
dolph, 130  111.  245,  22  N.  E.  Rep.  797; 
Viera  v.  Dobyus  (Cal.),  24  Pac.  Rep. 
1S1.  Corinne  Mill  Co.  v.  Johnston.  5 
Utah  147,  13  Pac.  Rep.  17;  Lincoln  v. 
Milstead,  3S  Mo.  App.  350;  Dean  v. 
Jones,  27  Mo.  App.  46S;  Turner  -•.  Hine, 
37  Iowa,  500.  See,  also,  authorities  col- 
lected in  note  ante,  §  12S.  While  the 
authorities  uniformly  hold  that  the  fail- 
ure to  perfect  the  appeal  in  time  makes  a 
dismissal  imperative,  yet  it  is  held  that 
a  case  may  be  made  excusing  the  delay. 
Chapman  v.  Bank,  S8  Cal.  419,  26  Pac. 
Rep.  60S;  Garitee  v.  Popplein,  73  Md. 
322,  20  Atl.  Rep.  1070.  But  a  very 
strong  case  must  be  made  in  order  to 
break  the  force  of  the  general  rule. 
Ante,  §§  116,  117.  and  authorities  cited. 


448  APPELLATE  PROCEDURE. 

i  525  Failure  to  give  Notice— Where  the  appellant  fails  to 
give  notice,  the  appellee,  unless  he  waives  notice  by  some  act, 
is  entitled,  upon  a  due  and  seasonable  motion,  to  a  dismissal  of 
the  appeal.  This  is  plainly  so  for  the  reason  that  notice  is  es- 
sential to  the  jurisdiction  over  the  person  by  the  appellate  tri- 
bunal. This  rule  does  not,  of  course,  apply  where  notice  is 
not  required,  as,  for  instance,  where  the  appeal  is  fully  perfected 
in  term.  It  is  hardly  necessary  to  refer  to  authorities  upon  the 
plain  elementary  proposition  stated,  especially  as  the  subject 
has  already  received  attention.1  Notice  to  co-parties  is,  as  we 
have  elsewhere  shown,  essential,  but,  under  the  decisions  of 
our  court,  all  objections  grounded  on  a  failure  to  give  notice  to 
co-parties  are  waived  if  not  made  before  joining  in  error.2  A 
failure  to  promptly  object  is,  as  said  in  the  first  paragraph  of 
this  chapter,3  a  waiver  of  mere  irregularities  or  defects  in  a 
notice,  and  a  general  appearance  without  objection  is  regarded 
as  a  waiver  of  all  objections  based  on  a  failure  to  give  notice. 

§  526.  No  Appealable  Interest— If  it  appears  from  an  inspec- 
tion of  the  record  that  the  party  who  assumes  to  appeal  has  no 
appealable  interest,  the  appeal   may  be  dismissed  on  motion.4 

1  Ante,  §173;  Holloran  v.  Midland  It  is  evident  that  the  later  cases  have 
Rv.  Co.,  2S  N.  E.  Rep.  549;  Herman  v.  departed  from  the  rule  respecting  notice 
Francis  Co.,  7  Mo.  App.  562;  Raymond  to  co-parties,  for  the  earlier  decisions 
v.  Richmond,  76  N.  Y.  106;  Hastings  v.  certainly  regarded  the  rule  as  of  a  sub- 
Halleck,  ioCal.31;  Franklin  v.  Reiner,  stantial  and  important  character  while 
S  Cal.  $40;  YVhipley  v.  Mills,  9  Cal.  641;  some  of  the  later  ones  declare  it  to  be 
Boston  V.  llavnes,  31  Cal.  107;  Foy  v.  somewhat  technical.  Sec,  in  addition 
Domec,  33  Cal.  317;  Lynch  v.  Dunn,  to  the  cases  first  cited  in  this  note.  Mc- 
34  Cal.  518;  Hendrickson  v.  Sullivan  Clure  v.  Taylor,  3S  Ind.  427.  As  a 
jS  Neb.  790,  44  X.  W.  Rep.  1 135.  type  of  the  later  cases,  see  Field  :•.  Bur- 

2  Knarr  v.  Conway,  37  Ind.  257;  ton,  71  Ind.  380.  A  discussion  of  the 
Wickharri  V.  Hess,  38  Ind.  183;  Hunter  subject  will  be  found  at  another  place. 
v.  Chrisman,  70  Ind.  439;  Burk  V.  Ante,  $$  143,  144.  See.  also,  Shannon 
Simonson,  104  Ind.  173;  Aylesworth  v.  v.  Cavazos,  131  U.  S.  App.  LXXI. 
Milford,  3S  Ind.  226;  Erwin  v.  Scotten,  3  See,  also,  Archey  v.  Knight,  61  Ind. 
38  Ind.  289.     As  to  who  are  deemed  co-  311,314. 

parties,  see  Keller  v.  Boatman,  49  Ind.  4  Independent  District,  etc.,  v.  Dis- 

101;     Hammon  v.  Sexton,  69  Ind.  37;  trict,  etc.,  44  la.  201 ;  Faucher  v.  Grass, 

Koons  v.  Mellett,  12 1  Ind.  585;    Hadley  60  la.  505;  Gresham  v.  Chantry,  69  la. 

•     Hill,  73  Ind.  442.     For  a  full  discus-  728;   Rivers    v.    Olmstead.   66  la.   1S6; 

sion   of  the    subject   of   co-parties   and  Hyatt  v.    Dusenbury,   1    Silvernail  (N. 

notice,  see  ante,  §§  139, 144,  156, 162,  163.  Y.),  475. 


DISMISSAL   AND  REINSTATEMENT.  449 

It  is  clear  that  there  can  be  no  right  of  appeal  in  a  stranger,  or 
in  one  who  has  no  substantial  interest  in  the  controversy.  We 
suppose,  however,  that  where  the  question  of  interest  or  no 
interest  is  an  original  one,  where  it  goes  to  the  merits  and 
requires  an  examination  of  the  whole  record,  the  court  will  not 
decide  it  upon  a  motion  to  dismiss  the  appeal. 

§  527.  Failure  to  file  a  Bond— Although  a  bond  is  not  usually 
essential  to  the  effectiveness  of  an  appeal,  yet  there  are  cases 
in  which  a  bond  is  indispensably  essential.1  Whether  a  bond 
is  essential  to  the  appeal  or  is  merely  necessary  to  secure  a 
stay  of  proceedings  is  to  be  determined  from  the  provisions  of 
the  statute.  Where  a  bond  is  required  as  a  part  of  the  proced- 
ure and  as  necessary  to  the  perfection  of  an  appeal,  it  must  be 
filed  within  the  time  prescribed  or  the  appeal  may  be  dismissed 
on  motion.2  A  party  who  assumes  to  file  a  bond  in  compliance 
writh  the  requirements  of  the  law  occupies  a  very  different  posi- 
tion from  one  who  makes  no  attempt  to  file  a  bond.  If  a  bond 
is  filed,  and  it  appears  to  have  been  filed  in  conformity  to  the 
requirements  of  the  law,  it  will  confer  jurisdiction  of  the  appeal 
although  it  may  be  radically  defective.  The  statute  provides 
that  appeals  shall  not  be  dismissed  for  informalities  or  defects 
in  a  bond,  and  provides,  also,  that  the  appellant  shall  be  given 
a  reasonable  time  in  which  to  file  a  new  bond.3  These  pro- 
visions, by  the  clearest  implication,  vest  jurisdiction  in  the  ap- 
pellate tribunal,  since  they  provide  for  action  by  that  tribunal  in 
cases  where  the  bond  is  defective,  and,  upon  the  familiar  rule 
that  the  power  to  decide  is  jurisdiction,  there  can  be  no  doubt 
that  jurisdiction  attaches,  although  the  bond  may  be  insufficient.4 

1  Ante,  §§  247,248,  and  authorities  v.  Nye,  90  N.  C.  11;  Hemphill  v.  Black, 
cited.  90  N.  C.  14;  Perkins  v.  Bates,  61  Tex. 

2  In   addition   to    the   authorities    re-  190;  Bellegradef.  San  Francisco  Bridge 
ferred  to  in  the  paragraphs  designated  Co.,  So  Cal.  61,  22  Pac.  Rep.  57;  Nelson 
in  the  preceding  note  may  be  cited  the  v.  Tenney,  "3  N.  Y.  616. 
following:     Clelland  v.  Tanner,  8  Col.  s  R.  S.  1SS1,  §  657. 

252;  Boyden  v.  Williams,  92  N.  C.  546;  *  Fischer  v.  Langbein,  103  N.  Y.  84. 

Eshon   v.  Chowan    Co.,  95   N.  C.  75;  See     ante,    "Appellate    Jurisdiction," 

Putnam  v.  Boyer,  140  Mass.  235;  Tur-  Chapter  II. 
ner  v.  Quinn,  92   N.  C.  501;   McMillan 

29 


450  APPELLATE  PROCEDURE. 

The  cases  declare  the  rule  as  we  have  stated  it  even  where 
there  is  no  such  statute  as  ours.1 

§  528.  Two  Appeals — Upon  the  general  principle  illustrated  in 
the  man)r  cases  which  hold  that  a  party  can  not  prosecute  a 
suit  to  review  a  judgment  and  an  appeal  to  reverse  it  at  the 
same  time,  it  must  be  held  that  a  party  can  not  prosecute  two 
appeals  in  the  same  case  and  against  the  same  judgment.  The 
prosecution  of  the  second  appeal  will  not  be  permitted,  but  an 
order  dismissing  it  will  be  granted  upon  motion.2  In  cases 
where  a  motion  is  grounded  upon  the  fact  that  the  appellant  is 
attempting  to  prosecute  two  appeals  in  the  same  case,  it  is 
proper  to  hear  evidence  dehors  the  record.  We  have  said  that 
a  motion  to  dismiss  is  appropriate  because  our  cases  assert  that 
such  an  issue  may  be  made  by  a  plea  or  by  a  motion  as  the 
party  may  elect.3 

§  529.  Appeal  from  Judgment  rendered  in  obedience  to  the  Man- 
date Remanding  the  Case — An  appeal  from  a  judgment  rendered 
in  obedience  to  the  mandate  of  the  appellate  tribunal  may  be 
dismissed  on  motion.  This  conclusion  results  from  the  principles 
declared  and  the  authorities  cited  in  another  chapter.4  Where 
the  appellate  tribunal  specifically  directs  the  judgment  that  the 
trial  court  shall  enter,  the  latter  court  does  not  in  entering  the 
judgment  directed  do  anything  more,  in  contemplation  of  law, 
than  enter  the  judgment  of  the  higher  court.  As  the  judgment 
entered  in  such  a  case  is,  in  effect,  the  judgment  of  the  appel- 
late tribunal,  to  permit  a  second  appeal  would  be  to  affirm  that 
an  appeal  will  lie  from  the  judgment  of  the  appellate  tribunal, 
and  this  no  precedent  will  justify  nor  any  principle  warrant.5 

'State    v.    Thompson,   Si    Mo.    163;  *  Post,  "  The  Judgment  on  Appeal," 

Jacobs  v.  Morrow,  21  Neb.  233.  Chapter  XXIX. 

3  In    re  Young,  22  Wis.   205;   Hop-  5  Mackall   v.  Richards,  116  U.  S.  45; 

kins  v.  Hopkins,  39  Wis.   165;   Moe  n.  Stewart    v.    Salamon,   97    U.    S.    361; 

Moe,  39  Wis.  30S;   Wisconsin,  etc.,  Co.  Humphrey   v.    Baker,    103    U.    S.   736, 

v.  Plumer,  4^  Wis.  668.  Kimberly   v.   Arms  Co.,  40  Fed.  Rep. 

3  Buntin  v.  Hooper,  59  Ind.  5S9;  Day  548.     See,  generally,  Shillern  v.  May.  6 

v.  School  City  of  Huntington,  7S   Ind.  Cranch.  267;  Ex  parte  Story,  12  Pet. 

280.     See,  "  l'i.-.-i'lii.^s  of  the  Appellee,"  339;  Ex  parte  Sibbald,  12  Pet.  4SS. 
ante,  Chapter  XXIII. 


DISMISSAL  AND  REINSTATEMENT.  451 

§  530.  Bill  of  Review — In  a  former  chapter  we  stated  the  gen- 
eral rule  to  be  that  a  party  can  not  prosecute  a  suit  to  review  a 
judgment  and  also  prosecute  an  appeal  to  reverse  the  same  judg- 
ment.1 That  this  is  the  general  rule  is  beyond  controversy,  and 
it  is  likewise  settled  that,  where  there  is  a  binding  election  by 
prosecuting  proceedings  to  review,  the  court  will,  upon  the 
proper  showing  and  appropriate  application,  dismiss  the  appeal.2 
But  there  is  an  exception  to  the  general  rule  that  a  party  can 
not  appeal  and  prosecute  a  suit  to  review.  A  party  may,  after 
an  unsuccessful  appeal,  prosecute  a  suit  to  review,  but  the  suit 
must  be  upon  the  ground  of  newly  discovered  matter,3  and 
questions  before  the  court  on  appeal,  and  there  decided,  can  not 
be  again  litigated.4 

§  531.  Parties  to  the  Motion  to  Dismiss — The  motion  to  dismiss 
must  ordinarily  be  made  by  one  who  has  a  right,  as  a  party  or 
privy,  to  have  the  appeal  dismissed.  But  the  court  may,  no 
doubt,  entertain  a  motion  even  from  a  stranger,  where  the 
ground  of  the  motion  is  the  want  of  jurisdiction  or  the  like, 
for,  as  we  have  seen,  the  court  may  dismiss  an  appeal  of  its 
own  motion.  A  stranger  can  not,  however,  be  heard  to  insist 
upon  a  dismissal  on  the  ground  that  there  is  an  insufficient 
notice,  a  defect  of  parties,  or  the  like,  since  such  grounds  can 

1  Ante,  §  149;  Humphrey  v.  Baker,  is  a  suit  to  review,  and  an  appeal,  and 
103  U.  S.  736;  Buscher  v.  Knapp,  107  so  it  is  held.  Davis  v.  Binford,  70  Ind. 
Ind.  340;  Traders  Ins.  Co.  v.  Carpen-  44;  Indiana,  etc.,  Co.  v.  Routledge,  7 
ter,  85  Ind.  350;     Whiting  v.  Bank,   13  Ind.  25. 

Pet.  6;    Burlington  v.  Harvey,  95  U.  S.  3  Hill  v.  Roach,  72  Ind.  57;  Barbon 

99;  Shelton  t'.Van  Kleeck,  106  U.S.  532;  v.  Searle,  1  Vern.  416;    United  States 

Ricker  v.  Powell,    100   U.    S.    104.     A  v.  Knight,  1  Black.  484,  489;  Bentley  v. 

party  may  appeal  from  a  judgment  ren-  Coyne,  4  Wall.  509;  Providence  Rubber 

dered  in  a  suit  to  review.     Brown  v.  Co.  v.  Goodyear,  9  Wall.  7S8,  S05;  Da- 

Keyser,  53  Ind.  85;  Keepfer  v.  Force,  vis  v.  Speiden,  104  U.  S.  S3,  87. 

86  Ind.  81.  *  Kimberly  v.  Arms,  40  Fed.  Rep.  548; 

2  Hill  v.  Roach,  72  Ind.  57.  In  the  Whiting  v.  Bank,  13  Pet.  6;  Bumngton 
case  cited  it  was  said:  "  It  is  unques-  v.  Harvey,  95  U.  S.  99;  Shelton  v.  Van 
tionably  true  that  in  this  State  a  com-  Kleeck,  106  U.  S.  532;  Ricker  v.  Powell, 
plaint  for  the  review  of  a  judgment  for  100  U.  S.  104.  These  cases  show  that 
error  of  law  in  the  proceedings  will  not  where  a  matter,  whether  of  fact  or  of 
lie  after  the  judgment  has  been  affirmed  law,  has  been  fully  considered  and  de- 
upon  appeal  to  this  court."  The  rule  cided  on  appeal,  it  can  not  be  again 
must  be,  in  effect,  the  same  where  there  brought  into  litigation. 


452  APPELLATE   PROCEDURE. 

only  be  urged  by  parties  to  the  appeal.1  If  a  joint  motion  to 
dismiss  is  made  by  several  parties  it  will  be  unavailing,  unless 
it  is  well  taken  as  to  all  who  unite  in  it.2 

§  532.  Requisites  of  the  Motion — The  motion  to  dismiss  the  ap- 
peal should  be  in  writing.  We  are  aware  that  in  a  case  de- 
cided some  years  ago  it  was  held  that  such  a  motion  need  not 
be  in  writing,3  but  we  regard  that  decision  as  erroneous  even 
under  the  rules  of  practice  as  they  then  existed,  for  a  motion 
is  a  pleading  and  pleadings  should  be  in  writing  ;  it  is,  how- 
ever, quite  clear  that  under  the  rules  now  in  force  the  motion 
must  be  a  written  one.1  The  motion  should  specify  with  rea- 
sonable certainty  the  grounds  upon  which  it  is  based.5  The 
motion  is  heard,  as  motions  generally  are,  upon  the  papers, 
affidavits  and  briefs  of  the  parties,  for  so  the  rules  of  court 
provide. 

§  533.  Notice  of  the  Motion  to  Dismiss — Even  in  the  absence  of 
an  express  rule  of  court  upon  the  subject,  it  is  clear,  on  principle 
and  authority,  that  the  appellant  is  entitled  to  notice  of  the  mo- 
tion to  dismiss.'"'  It  would  be  unjust  to  require  parties  to  be 
constantly  on  the  watch  for  movements  by  their  adversaries  in 
a  court  whose  jurisdiction  extends  over  the  whole  State.  But 
the  rule  of  court  settles,  and  rightly  settles,  the  question  ;  notice 
must  be  given.7  Notice  may  be  served  upon  the  adverse  party 
or  his  attorney  of  record.8  Where  a  special  motion,  such  as  a 
motion  to  dismiss,  is  made  and  notice  given,  the  party  is  fully 

1  Watertown  National  Bank  v.  Hola-  motions  shall  be  in  writing.     Rule  XII. 

bird  (S.  Dak.),  49  N.  W.  Rep.  98.  Newman  v.  Riser,  128  Ind.  258. 

3  State  v.  Cunningham,  101   Ind.  461.  5  Bilyeu  v.  Smith,  iS  Oregon,  335,22 
An  appeal  may  be  dismissed  as  to  one  Pac.  Rep.  1073. 

party    without   affecting    the   rights   of  6  Dyer  v.  Brady  (Cal.),  26  Pac.  Rep. 

other    parlies.      Miller    v.    Arnold,    65  511;  Town   of  Enterprise  v.  State,  24 

Ind.  488.  Fla.  152;  Loucheine  v.  Strouse,  46  Wis. 

<>tten  v.  Divilhiss,  60  Ind.  37.    It  4S7. 

is  evident  that   the   case  cited  did  not  7  Dick  v.  Mullins,  128  Ind. 365,  27  N. 

receive   very   careful  consideration   and  E.  Rep.  741;    Hargrove  v.  Washington, 

thai    there  are  other  errors  and  incon-  32  So.  Car.  5S4,  10  S.  E.  Rep.  616. 

sistencies  in  the  opinion  than  the  one  8  Ashe  v.  Glenn,  33  So.  Car.  606,   12 

mentioned  in  the  text.  S.  E.  Rep.  423. 

4  The  rule-  of  court  require  thai  such 


DISMISSAL  AND  REINSTATEMENT.  453 

in  court  to  answer  the  motion  and  is  bound  to  take  notice  of 
the  disposition  made  of  it.1 

§  534.  Dismissal  by  the  Appellant — An  appellant  may,  of  course, 
dismiss  his  appeal  if  it  will  not  prejudice  the  rights  of  the  ap- 
pellee. But  broad  as  is  the  right  of  the  appellant  to  dismiss,  he 
will  not  be  permitted  to  exercise  it  to  the  manifest  injury  of  the 
appellee.2  It  is  difficult  to  conceive  a  case  where  a  dismissal 
would  so  materially  prejudice  the  appellee  as  to  preclude  the 
appellant  from  dismissing,  except  a  case  where  there  is  an  as- 
signment of  cross-errors,  although  it  may  be  possible  that  there 
are  other  cases  where  a  right  to  dismiss  can  not  be  exercised, 
because  its  effect  would  be  unjustly  prejudicial  to  the  appellee. 
Where  there  is  an  assignment  of  cross-errors  the  appellant  can 
not  dismiss  the  appeal  so  effectively  as  to  carry  the  appellee's 
case  out  of  court.3  The  appellee  may,  of  course,  consent  to 
such  a  dismissal,  but  it  can  not  be  rightfully  ordered  over  his 
objection. 

§  535.  Effect  of  a  Dismissal — The  effect  of  the  dismissal  of  an 
appeal  is,  as  a  general  rule,  to  leave  the  case  as  if  there  had 
been  no  appeal.4  An  order  of  dismissal  does  not  preclude  a 
second  appeal.  But  a  dismissal  will  not  authorize  a  second 
appeal  after  the  time  limited  for  appealing.  This  is  so  for  the 
reason  that  a  party  can  not  successfully  plead  his  own  laches 
as  an  excuse  for  not  perfecting  the  appeal  within  the  time  pre- 
scribed by  law.5  The  dismissal  of  the  appeal  takes  the  case 
and  the  parties  out  of  court,  and  the  refiling  of  the  transcript  is 
the  filing  of  a  new  appeal.0     But  where  notice  is  given  of  a 

1  This   is    the    doctrine   declared   in  App.538;  Lawrence  v.  Wood,  122  Ind. 

Heaton  v.  Knowlton,  65  Ind.  255.  452,  24  N.  E.  Rep.  159;  Corinne,  etc.,  Co. 

*  State  v.  Moriarity,  20  Iowa,  595.  v.  Johnston,  5  Utah,  147;    Wiseman  v. 

3  Feder  v.  Field,  117  Ind.  3S6.  Mitchell  Co.,  104  N.  C.  330,  10  S.  E. 

4  Wallace  v.  Carter,  32  So.  Car.  314,  Rep.  481;  Leary  v.  Territory,  3  Wash. 
11  S.  E.  Rep.  97;  Fagan  v.  McTier,  81  Ty.  13,  13  Pac.  Rep.  665;  Varn  w.Will- 
Ga.  73,  6  S.  E.  Rep.  177.  iams,  30  So.  Car.  608, 10  S.  E.  Rep.  390. 

5  State  v.  Ferguson,  42  La.  Ann.  643,  6  In  the  case  of  Board  v.  Brown,  14 
7  So.  Rep.  670;  Bunting  v.  Saltz,  84  Ind.  191,  the  court  said:  "Upon  the 
Cal.  168,  22  Pac.  Rep.  1132,  S.  C.  24  dismissal  of  an  appeal,  the  parties  are 
Pac.  Rep.  167;     Stenzel  v.  Sims,  25  111.  no   longer  in  court,  and  the   refiling  of 


APPELLATE    PROCEDURE. 

motion  to  reinstate  and  upon  that  notice  reinstatement  is  or- 
dered there  is  nothing  more  than  the  continuation  of  the  orig- 
inal appeal. 

§  536.  Withdrawing  the  Transcript — It  has  long  been  the  prac 
tice  to  permit  an  appellant,  upon  leave  asked,  to  withdraw  the 
transcript.  The  right  to  withdraw  a  transcript  is  not  an  abso- 
lute one,  but  the  leave  to  withdraw  is  granted  as  a  matter  of 
favor.  It  is,  therefore,  discretionary  with  the  court  to  grant 
or  refuse  leave  to  withdraw  the  transcript  after  the  dismissal  of 
the  appeal.  It  is,  indeed,  held  by  the  Supreme  Court  of  the 
United  States  that  the  transcript  becomes  a  record  of  the  higher 
court  and  can  not  be  withdrawn.1 

§  537.  Reinstatement — The  Power  to  Order — An  appellate  tri- 
bunal by  virtue  of  the  inherent  power  which  resides  in  courts 
of  such  a  high  rank  may  undoubtedly  reinstate  an  appeal  wher- 
ever justice  requires  it.  The  statute  assumes  to  confer  upon 
the  court  this  power,  but  it  needs  no  statute  to  invest  the  court 
with  power  over  its  own  judgments  and  records,  for  that  power 
exists  as  an  inherent  attribute  in  the  court  as  one  of  the  organs 
of  sovereignty.  The  power  is  in  the  main  a  discretionary  one,2 
so  that  it  is  not  hedged  in  by  fixed  rules,  although  there  are 
rules  to  which  the  courts  usually  yield  obedience. 

§  538.  Cause  must  be  Shown — The  reinstatement  of  an  appeal, 
no  matter  for  what  reason  the  order  of  dismissal  is  granted,  is 
not  a  matter  of  course.  Courts  ordinarily  require  that  satisfac- 
tory catise  be  appropriately  shown.  One  who  has  negligently 
and  purposely  violated  the  rules  of  the  court,  or  has  failed  to  do 
what  the  law  requires,  can  not  ask  a  reinstatement  as  a  matter 
of  right.3 

the  record   is   the  institution  of  a  new  Rep.  783;  Gulf,  etc.,  Co.  v.  Edwards,  72 

suit,  at  least  so   far  as   to  require  that  Texas,  303,  10  S.W.  Rep.  525;  Thomas 

notice  shall  he  given  to  the  defendant."  v.  Kelley,  27  111.  App.  491;  Bullock  v. 

1  Cheney  7'.  Hughes,  13S  U.  S.  403,  11  Cook,    2S    Mo.   App.    222;    Morton    v. 
Sup.  Ct.  Rep.  303.  Green,  104  N.  C.400,  10  S.  E.  Rep.  470; 

2  Panton  7'.  Manley,  89  111.  458;  State  Whitehurst  v.  Pettipher,  105  N.  C.  39, 
v.  Foster,  44  N.J.  L.  378.  10  S.  E.  Rep.S57;   Stephens  7'.  Koonce, 

8  Taylor  v.  State,  82  Ga.  57s,  9  S.  E.     106  N.  C.  255,  10  S.  E.  Rep.  996;  Griffin 


DISMISSAL  AND  REINSTATEMENT.  455 

§  539.  Notice  of  the  Motion  to  Reinstate — A  motion  to  reinstate 
can  not  be  heard  unless  proper  notice  has  been  given.  The 
motion  is  a  special  one,  and  falls  within  the  rule  that  all  special 
or  collateral  motions  require  notice.  But  there  is  an  especially 
strong  reason  for  requiring  notice  of  an  application  to  reinstate, 
and  that  is  this  :  The  effect  of  a  dismissal  is  to  carry  the  case 
and  the  parties  out  of  court,1  and  they  can  only  be  brought  into 
court  upon  notice.  Where  notice  is  duly  given,  the  parties  are 
in  court  as  to  the  matters  presented  by  the  motion  with  all  their 
incidents,  and  they  must  take  notice  of  the  action  of  the  court 
respecting  the  motion.  If  the  application  can  not  be  heard  at 
the  time  designated  in  the  motion,  it  will  be  heard,  without  any 
new  or  additional  notice,  at  a  subsequent  time.2 

§  540.  Practice  on  Motion  to  Reinstate — A  motion  to  reinstate 
is  heard  upon  the  papers,  affidavits  and  written  briefs.  The 
papers  are  to  be  filed  with  the  clerk  who  will  transmit  them  to 
the  court.  The  notice  may  be  served  upon  the  adverse  party  or 
some  one  of  his  attorneys  of  record.  The  motion  should  be 
placed  on  file  with  the  necessary  affidavits  and  briefs  at  the 
time  of  giving  the  notice.  The  adverse  party  is  entitled  to  a 
reasonable  time, — ten  days, — in  which  to  respond  to  the  mo- 
tion, so  that  all  the  papers  should  be  on  file  for  that  length  of 
time  before  the  date  appointed  for  the  hearing. 

v.  Nelson,  106  N.  C.  235,  11   S.  E.  Rep.  774,  8  Sup.   Ct.   Rep.  1395;    Moore  v. 

414.     The  cases  which  follow  indicate  Brown,  Si   Ga.  10,  6   S.   E.   Rep.  833; 

what  causes  are  not  sufficient  to  secure  Stoddard   v.   Roland,   31   So.  Car.  342, 

the  reinstatement  of  an  appeal.     Jones  600,9  s.  E.  Rep.  741;    Smith  ».  S'um- 

x\  State,  So  Ga.  640,  6  S.  E.  Rep.  172;  merfield,   107  N.  C.  5S0.  12  S.  E.  Rep. 

Evans  v.  Kilhy,  81  Ga.  27S,  7  S.  E.  Rep.  465.     As  to  the  effect  of  negligence,  see 

226;  Rumsey,  etc.,  Co.  v.  Baker,  33  Mo.  Le  Guen  v.  Gouverur,  1  Johns.  Cases, 

App.  239;  Williams  v.  Jacksonville,  etc.,  436,  502;   Duncan  v.  Lyon,  3  Johns.  Ch. 

Co.,  25  Fla.  359,  s   So.  Rep.  847;   Har-  351;   M'Vickar  r.Wolcott,  4  Johns.  510; 

mon  v.  Lexington,  32  So.  Car.  5S3,  10  Ward  v.  Town  of  Southfield,  102  N.  Y 

S.  E.  Rep.  552.    The  cases  which  follow  2S7.     See,  generally,  Peyton  v.  Kruger, 

supply  illustrations  of  what  has    been  77  Ind.  486;  Johnson   v.  Herr,   SS  Ind. 

regarded  as  sufficient  cause.    Tribble  v.  2S0;  Sharp  v.  Moffitt,  94  Ind.  240. 

Poore,  28  So.  Car.  565,  6  S.  E.  Rep.  577;  '  Board  v.  Brown,  14  Ind.  191. 

State  v.  Gaslin,  25  Neb.  71,  40  N.  W.  2  Heaton  v.  Knowlton,  65  Ind.  255. 
Rep.  601,   Hunt  v.  Blackburn,  127  U.  S. 


,  CHAPTER  XXVII. 

THE    EFFECT    OF    AN    APPEAL. 

§  541.    An    appeal    removes    the   case     §  545.    Collateral  or  supplemental  mat- 
ters not  covered  by  the  appeal. 

546.  The  judgment  effective  notwith- 
standing the  appeal. 

547.  Action  upon  the  judgment  not 
barred  by  the  appeal. 

54S.    Supplying  omissions    and   cor- 
recting the  record  after  appeal. 
549.    A  new  record  can  not  be  made. 


from   the   jurisdiction   of  the 

trial  court. 
^42.    Appeal    from    an    interlocutory 

order  does  not  completely  oust 

jurisdiction. 
Illustrative  cases. 
What  the  appeal  covers. 


543- 
544- 


§  541.  An  Appeal  removes  the  Case  from  the  Jurisdiction  of  the 
Trial  Court — The  overwhelming  weight  of  authority  is  that  an 
appeal,  properly  perfected,  removes  a  case  wholly  and  abso- 
lutely from  the  trial  court  and  places  it  in  the  higher  tribunal.1 


1  Allen  v.  Allen,  80  Ala.  154;  Boyn- 
ton  7'.  Foster,  7  Metcf.  415;  Bryan  v. 
Bery,  8  Cal.  130;  Baggs  v.  Smith,  53 
Cal.  8S;  Livermore  v.  Cambell,  52 
Cal.  76;  Burgess  v.  Donoghue  (Mo.),  2 
s  W.  Rep.  303;  Elgin  Lumber  Co.  v. 
Langman,  23  111.  App.  250;  State  v. 
Duffel,  41  La.  Ann.  958;  Stephens  v. 
Koonce,  106  N.  C.  222,  10  S.  E.  Rep. 
996;  Kimberly  v.  Arms,  40  Fed.  Rep. 
54S;  Ensminger  v.  Powers,  10S  V .  S. 
292;  Pierson  v.  McCahill,  23  Cal.  249, 
2^3;  McGarrahan  v.  New  Idra  Co.,  49 
Cal.  331,345;  Mitchell  v. United  States, 
9 Pet.  711;  Saltmarsh  r.Tuthill,  12  How. 
U.S.)  587;  Hronson  v.  La  Crosse,  etc., 
Co.,  1  Wall.  405;  Stewart  V.  Stringer.  41 
Mm.  400,  S.  C.  <■)-  Ani.  Dec.  27S;  Helm 
-  Boone,  6  J.  J.  Marsh.  351,  S.  C.  22 
Am.  Dec.  75;  Planter's  Bank  v.  Neely, 
7  How.  (Miss.)  So,  S.  C.  40  Am.  1>.  c. 
51;     M'Laughlin    v.  Janney,  6  Gratt. 


(Va.)  609;  McGlaughlin  v.  O'Rourke, 
12  Iowa,  459;  Ladd  v.  Couzins,  35  Mo. 
513;  State  v.  Kolsem  (Ind.),  Dec.  19. 
1891.  The  only  case  which  opposes 
the  doctrine  of  the  cases  cited  that  we 
have  been  able  to  find  is  that  of  Indi- 
ana, etc.,  Co. V.  McBroom,  103  Ind.  310. 
The  decision  in  that  case,  we  venture  to 
say,  is  not  sound.  It  is  antagonistic  to 
the  general  principle  declared  by  the 
cases  referred  to  above,  and  to  the  doc- 
trine of  the  text  writers.  1  Black  on 
Judgments,  §  243.  It  is  opposed  to  the 
established  doctrine  that  a  party  can 
not  pursue  two  remedies  at  the  same 
time.  Kimberly  v.  Arms,  supra;  Ens- 
minger v.  Powers,  10S  U.  S.  292,  302; 
Traders  Ins.  Co.  v.  Carpenter,  S5  Ind. 
350;  Harvey  r.  Fink,  in  Ind.  249;  Kle- 
bar  v.  Town  of  Corydon,  80  Ind.  95,  and 
-  eited.  If  a  party  can  obtain  a 
new   trial   while  an   appeal  is   pending. 


(456) 


THE  EFFECT  OF  AN   APPEAL.  457 

It  is  difficult  to  conceive  how  it  could  be  otherwise,  since  it  is 
not  possible  that  two  courts  can  have  authority  over  a  single 
case  at  the  same  time.  The  case  must,  of  invincible  necessity, 
be  in  the  higher  court  or  in  the  lower  court,  for  it  can  not  be  in 
both  courts.  As  the  authority  of  the  inferior  yields  to  the  su- 
perior, the  case  is,  for  all  purposes  connected  with  the  considera- 
tion and  decision  of  the  questions  involved  in  it,  completely 
within  the  jurisdiction  of  the  appellate  tribunal.  The  right  to 
order  process  to  enforce  the  judgment  remains  in  the  trial  court 
where  there  is  no  supersedeas  or  order  staying  proceedings, 
but  all  jurisdiction  over  questions  involved  in  the  litigation  and 
embraced  by  the  judgment  terminates  with  the  removal  of  the 
case  to  the  appellate  tribunal.  The  loss  of  jurisdiction  is  so 
complete  as  to  require  a  party  who  seeks  relief  from  any  error, 
except  an  error  in  making  the  record  or  in  omitting  something 
from  the  record,  to  apply  to  the  higher  court.  After  the  cause 
leaves  the  lower  court  it  can  not  act  upon  any  question  involved 
in  the  appeal.  Where  the  appeal  is  made  to  operate  as  a 
supersedeas,  as  we  have  elsewhere  shown,  it  operates  not  only 
to  divest  the  jurisdiction  of  the  trial  court  but  also  to  preclude 
the  trial  court,  or  the  parties,  from  taking  steps  to  enforce  the 
judgment.1 

§  542.  Appeal  from  an  Interlocutory  Order  does  not  completely 
onst  Jurisdiction — Where  the  law  permits  an  appeal  from  an 
interlocutory  judgment  or  an  intermediate  order,  and  the  ap- 
peal is  from  such  an  order  or  judgment,  only  part  of  the  case 
is  removed  by  appeal  from  the  trial  court  to  the  appellate  tri- 
bunal.2 But  the  part  of  the  case  appealed  goes  completely  to 
the  higher  court.  If,  for  instance,  an  appeal  is  duly  taken  from 
an  order  appointing  a  receiver,  only  so  much  of  the  case  as  af- 

the  effect  is  to  terminate  the  case  in  the  Karrich,  15  Iowa.  444;  Skinner  v.  Bland, 

higher  court,  since  nothing  is  left  for  87  N.  C.  168;     Penrice    v.   Wallis,   37 

decision.     There  is  no  longer  any  con-  Miss.   172.     See  Stay  of  Proceedings, 

troverted  question.     The  effect  of  such  Supersedeas,  Appeal  Bond, 

a  doctrine   is   to    practically  make  the  2  Jewett    v.    Albany    City    Bank,     1 

superior  tribunal  yield  to  the  inferior.  Clark  (N.  Y.),  59;  Atlantic  Ins.  Co.  v. 

1  Coates    v.  Wilkes,   94   N.  C.   174;  Lemar,  10  Paige,  505;  Deas  z>.Thorne, 

Keyser  v.  Farr,  105  U.  S.  265;  Stone  3  John.  543. 
v.  Spellman,    16  Texas,  432;    Levi  v. 


158  APPELLATE   PROCEDURE. 

fects  that  order  is  carried  out  of  the  jurisdiction  of  the  trial 
court,  and,  as  it  retains  jurisdiction  of  the  principal  issues,  it 
may  proceed  to  hear  and  determine  them,  but  it  certainly  could 
not  hear  or  decide  the  branch  of  the  case  removed  by  the  ap- 
peal to  the  higher  court.  l\\  to  again  illustrate,  suit  should  be 
brought  to  foreclose  a  mortgage  and  for  the  appointment  of  a 
receiver,  and  the  court  should  enter  an  interlocutory  order  ap- 
pointing a  receiver,  a  proper  appeal  would  carry  up  the  case  so 
far  as  it  involved  the  order,  but  it  would  leave  the  part  of  the 
case  involved  in  the  issue  made  upon  the  mortgage  in  the  trial 
court.  It  is  quite  clear,  upon  principle  and  authority,  that  what 
is  effectively  appealed  leaves  the  jurisdiction  of  the  one  court 
and  completely  enters  that  of  the  other. 

§  543.  Illustrative  Cases — The  scope  and  effect  of  the  general 
rule  that  the  appeal  divests  the  jurisdiction  of  the  trial  court, 
are,  of  course,  illustrated  in  the  cases  already  referred  to,  but  it 
may  serve  to  exhibit  the  rule  in  a  clearer  light  to  refer  to  par- 
ticular instances  of  its  application.  After  an  appeal  has  been 
taken  the  trial  court  can  not  make  a  supplemental  decree.1  It 
has  been  held  that  a  motion  to  retax  costs  can  not  be  made  after 
the  appeal,2  but  it  may  be  doubted  whether  this  is  not  carrying 
the  doctrine  too  far,  although  there  is  reason  supporting  it. 
Where  the  amount  or  the  right  to  costs  is  the  question  involved 
in  the  appeal,  and  requires  the  judgment  of  the  appellate  tri- 
bunal, then  the  trial  court  has  no  power  to  adjudicate  upon  it ; 
but  where  the  question  comes  up  as  a  distinct,  supplemental  or 
collateral  matter,  we  can  see  no  reason  why  it  may  not  be  de- 
cided, pending  the  appeal,  by  the  trial  court.  It  has  been  held 
that  an  appeal  from  an  order  refusing  to  set  aside  a  settlement 
of  an  administrator  so  completely  carries  the  case  into  the  ap- 
pellate tribunal  that  no  trial  court  can  assume  jurisdiction  of 
the  same  subject.3  Where  a  decree  is  entered  in  a  suit  for  di- 
vorce, and  an  appeal  is   perfected,  alimony  can   not,  as  it  has 

1  Real  v.  Chase.  31  Mich.  490.  First  National  Bank,  30  la.  191;  Car- 

2  Levi  v.  Karrick,  15  Iowa,  444;  Mc-  michael  v.  Vandebur,  51  la.  525. 
Glaughlin  v.  O'Rourke,  12  la.  459.   For  3  Townsend  v.  Townsend,6o  Mo.  246. 
discussions    and     illustrations    of    the  See,  generally,  State  v.  Musick,  71  Mo. 
general  rule  see  the  cases  of  Turner  v.  401. 


THE   EFFECT  OF  AN    APPEAL.  459 

been  held,  be  allowed  during  the  pendency  of  the  appeal  by  the 
trial  court.1  After  an  appeal  in  attachment  proceedings  the 
trial  court  has  no  jurisdiction  to  order  the  attachment  dis- 
charged. In  a  case  where  an  injunction  is  finally  denied,  the 
trial  court's  jurisdiction  is  taken  away  by  the  appeal,  and  it  can 
not  award  an  injunction2  in  the  same  proceeding,  unless  the 
injunction  is  asked  as  to  some  distinctly  independent  or  supple- 
mental matter.  Without  further  discussion  of  particular  in- 
stances, we  pass  from  the  immediate  topic  with  the  general 
statement  that  in  whatever  phase  the  question  has  been  pre- 
sented the  ruling  has  been  that  where  there  is  a  general  appeal 
the  authority  over  the  questions  involved  in  and  covered  by  the 
appeal  is  transferred  to  the  higher  court.3 

§  544.  What  the  Appeal  Covers — The  appeal  when  prosecuted 
generally  brings  up  the  whole  case,4  although  not  all  the  ques- 
tions may  be  so  presented  as  to  entitle  the  appellant  to  a  review 
of  the  rulings  upon  them.  There  is  a  clear  and  important  dis 
tinction  between  bringing  up  questions  and  presenting  questions 
for  review.  A  party  may  not  properly  present  questions,  but 
if  they  are  within  the  issues  they  are  covered  by  a  general  ap- 
peal. This  is  evident.  If  the  judgment  had  not  been  appealed 
from  it  would,  upon  a  familiar  elementary  principle,  have  so 
completely  terminated  and  adjudicated  all  the  questions  em- 
braced within  the  issues  as  to  conclude  the  parties.  The  ap- 
peal does  not  take  from  the  judgment  its  chief  and  most  valua- 
ble characteristic, — that  of  terminating  litigation  by  a  final  and 

1  Lewis  v.  Lewis,  20  Mo.  App.  546.     involved  in  the  case  carried  up  bv  the 
Said  the  court  in  the  case  cited:   "After     appeal. 

the  appeal,  the  circuit  court  had  no  such  3  Western,  etc.,  Co.  v.   State,  69  Ga. 

jurisdiction."     Cralle  v.  Cralle,  81  Va.  524;    Skinner   v.   Blair,  87    N.   C.  168; 

773;    Pasour   v.  Lineberger,  90  N.  C.  Keyser  v.  Farr,  105  U.  S.  265;   Stewart 

159.  v.  Taylor,  68  Cal.  5;  Whaley  v.  Charles- 

2  Spears  v.  Matthews,  66  N.  Y.  127.  ton,  S  So.  Car. 344;  Harrison  v.  Trader, 
We   have   qualified  the  rule  stated  for  29  Ark.  S5. 

the    reason    that,    as  will   be  presently  4  Palmer  v.  Rogers,  70  la.  3S1;  Clair 

shown,  the  trial  court  majr  make  orders  v.  Terhune,  ■$$  N.  J.  Eq.336;  Bledsoe  v. 

relating  to  distinctly  independent  sup-  Nixon,  69  N.  C.  Si;   Smith  v.  Cooper, 

plemental    or    collateral    matters,    al-  21  Ga.  359;  Woodrum  v.  Kirkpatrick,  2 

though  it  can   make   no  orders  nor  de-  Swan  (Tenn.),  217. 
clare  any  decisions  upon  the  questions 


460  APPELLATE  PROCEDURE. 

conclusive  adjudication  ;  on  the  contrary,  the  judgment  retains 
that  characteristic  and  possesses  that  effect  until  reversed.  A 
general1  appeal,  therefore,  necessarily  removes  from  the  juris- 
diction of  the  trial  court  all  questions  concluded  by  its  judg- 
ment. 

§  545.  Collateral  or  Supplemental  matters  not  covered  by  the  Ap- 
peal— Matters  independent  of  and  distinct  from  the  questions 
involved  in  the  appeal  are  not  taken  from  the  jurisdiction  of  the 
trial  court.  Such  matters  as  the  appeal  does  not  cover  are 
purely  collateral  or  supplemental,  lying  outside  of  the  issues 
framed  in  the  case,  or  arising  subsequent  to  the  delivery  of  the 
judgment  from  which  the  appeal  is  prosecuted.  The  general 
rule  that  a  case  leaves  the  jurisdiction  of  the  trial  court  when 
an  appeal  is  perfected  is  not  impinged  by  holding  that 
purely  collateral  or  supplemental  matters  are  left  under  the 
control  of  the  trial  court,  notwithstanding  the  loss  of  jurisdic- 
tion over  the  case  taken  to  the  higher  court.  A  reference  to 
some  of  the  instances  where  power  over  collateral  or  supple- 
mental matters  was  held  to  remain  in  the  trial  court  will  give  a 
clearer  conception  of  the  law  upon  the  subject  than  general 
words  can  do.  Where  property  is  sold  pursuant  to  a  decree  of 
the  court,  the  pendency  of  an  appeal  will  not  preclude  the  trial 
court  from  taking  steps  to  coerce  payment  from  the  purchaser.2 
A  pending  appeal  does  not  take  from  the  trial  court  authority 
to  compel  a  ministerial  officer  to  perform  a  duty,  although  the 
dutv  may  be  collaterally  connected  with  matters  embraced  in 
the  appeal.3  Where  the  duties  of  a  receiver  have  fully  termi- 
nated, or  where  he  is  guilty  of  a  breach  of  duty,  the  trial  court 
may,  as  we  suppose,  make  the  necessary  order  in  a  case  where 
the  receivership  is  merely  ancillary,  but  where  the  very  ques- 
tion involved  in  the  appeal  is  the  conduct  of  the  receiver,  the 
trial  court  can  not  rule  upon  his  conduct,  except  where  the  con- 
duct relates  to  matters  subsequent  to  the  appeal.1     The  trial 

1  We     employ    the     term,    "general  this  is  the  rule,  but  it  is  not  entirely 

appeal,"  for  want  of  a  better,  to  desig-  without  exceptions. 

nate  oases  where  the  appeal  is  not  from  *  State  v.  Houston,  35  La.  Ann.  236. 

part  only  of  a  case.     Ordinarily  an  ap-  s  State  v.  Clark.  ^^  La.  Ann.  422. 

peal  brings  up  the  whole  controversy;  *  In    Baughman   v.  Calveras,  72  Cal. 


THE  EFFECT  OF  AN   APPEAL.  461 

court  may  entertain  a  motion  to  set  aside  a  sale  of  land  made 
under  its  order,  where  the  sale  is  purely  collateral  and  inci- 
dental.1 If  a  fund  is  left  in  the  hands  of  the  trial  court,  or  in 
the  hands  of  one  of  its  officers  or  agents,  it  may  make  orders 
for  its  investment  or  other  orders  of  a  like  general  nature.2  An 
appeal  does  not  cover  matters  not  fairly  embraced  within  the 
issues,  although  such  matters  may  grow  out  of  or  be  connected 
with  the  same  general  subject.3  But  care  is  required  in  the  ap- 
plication of  the  subsidiary  rule  just  stated  to  prevent  a  violation 
of  the  wide  reaching  and  salutary  principle  that  what  might 
rightfully  have  been  litigated  in  the  case  is  regarded  as  having 
been  litigated  and  determined.  If  the  general  principle  that  a 
judgment  is  final  and  conclusive  as  to  the  particular  controversy 
is  not  adhered  to,  great  evil  and  confusion  of  a  perplexing  and 
vicious  effect  would  inevitably  result,  inasmuch  as  the  repose 
of  society  would  be  disturbed  by  vexatious  and  prolonged  liti- 
gation and  different  decisions  might  be  made  in  the  same  case. 
The  true  rule  is  that  whatever  the  judgment  below  legitimately 
covers  the  appeal  embraces. 

§  546.   The  Judgment  effective  notwithstanding  the  Appeal — The 

decisions  in  this  State  have  steadily  asserted  the  doctrine  that 
the  judgment  is  not  affected  by  the  appeal  further  than  that  pro- 
ceedings are  stayed  in  cases  where  the  proper  bond  is  filed. 
In  one  case  it  was  held  that  a  party  who  had  appealed  from  a 
judgment  refusing  to  permit  the  probate  of  a  will  could  prose- 
cute an  action  notwithstanding  the  appeal,  although  it  proceeded 
upon  the  theory  that  the  will  involved  in  the  appeal  was  in- 
valid.4 In  another  case  a  judgment  of  eviction  was  rendered, 
and  it  was  held  that  the  action  upon  the  covenants  of  the  deed 

572,  the  court  went  much  further  than  3  State  v.  Davey,  39  La.  Ann.  507,  2 

the  text.    As  to  matters  occurring  after  So.  Rep.  44. 

the  appeal  is  perfected,    State  v.  Ham-  *  Burton  v.  Burton,  2S  Ind.  342.     In 

mill,  6  La.  Ann.  257.  this  case   the  court  said:     "The  only 

1  Moore  v.  Jordan,  65  Texas,  395.  effect  of  the  appeal  is  to  stay  execution 

2  Goddard  v.  Ordway,  94  U.  S.  672;  upon  the  judgment  from  which  the  ap- 
Hinson  v.  Adrain,  91  N.  C.372;  Spring  peal  was  taken.  In  all  other  respects 
i\  South  Carolina  Ins.  Co.,  6  Wheat,  the  judgment,  until  annulled  or  re- 
519.  versed,  is  binding  upon   the   parties  as 

to  every  question  directly  presented." 


462 


APPELLA 1  E   PROCEDURE. 


was  maintainable  inasmuch  as  the  judgment,  although  appealed 
from,  was  an  ouster.1  Still  stronger  doctrine  was  asserted  in  a 
casr  in  which  it  was  held  that  a  party  to  whom  land  was  set 
off  in  a  partition  proceeding  might  maintain  an  action  to  recover 
possession  of  the  land  although  an  appeal  from  the  judgment 
in  the  partition  proceedings  was  pending.2  It  has  been  held 
in  many  cases  that  an  appeal  does  not  suspend  or  destroy  the 
effect  of  an  injunction  decreed  in  the  suit  from  which  the  ap- 
peal is  prosecuted.3  The  general  conclusion  to  which  the  au- 
thorities with  substantial  unanimity  lead  is,  that  the  appeal,  even 
where  a  supersedeas  is  granted,  suspends  the  enforcement  of 
the  judgment  and  leaves  the  case  where  the  judgment  from 
which  the  appeal  is  prosecuted  placed  it.4 

§  547.    Action   upon  the  Judgment  not  barred  by  an  Appeal — It 

has  long  been  the  doctrine  of  our  court  that  an  appeal  does  not 
bar  an  action  upon  the  judgment.5     This  question  is  one  upon 


1  Burton  v.  Reeds,  20  Ind.  87.  See 
Bryan  v.  Scholl,  109  Ind.  367;  Ander- 
son, etc.,  v.  Thompson,  S7  Ind.  278. 

:  Randies  v.  Rahdies,  67  Ind.  434. 

3  United  States  v.  Knox  County,  39 
Fed.  Rep.  757;  State  v.  Dillon,  96  Mo. 
56,  S  S.  W.  Rep.  781;  Central  Union  Tel. 
Co.  v.  State,  no  Ind.  203;  Hawkins  v. 
State,  126  Ind.  294;  State  v.  Chase,  41 
Ind.  356;  Heinlen  v.  Cross,  63  Cal.  44; 
Sixth  Avenue,  etc.,  Co.  V.  Gilbert,  etc., 
Co.,  71  N.Y.430;  Robertson  v.  David- 
son, 14  Minn.  554;  Graves  -.•.  Maguire,  6 
Paige  Ch.  379;  Clark  v.  Clark,  7  Paige 
Ch.607;  Burr  v.  Burr,  10  Paige  Ch.  166; 
First  National  Bank  v.  Rogers.  13 
Minn.  407;  Cook  v.  Dickerson,  1  Duer. 
('179;  Burrall  v.  Vanderbilt,  1  Bosw. 
r'/>7-  643;  Hicks  v.  Michel,  15  Cal.  107; 
(  >rtman  v.  Dixon,  9  Cal.  23;  Scheible  v. 
Slagle,  S9  Ind.  323,  328.  In  Padgett 
State,  93  Ind.  396,  the  general  doctrine 
was  thus  stated:  "  A  judgment  is  not 
changed  or  impaired  by  an  appeal,  ir 
remains  in  full  force."  The  cases  of 
Mull:     McKnight,  67   Ind.  525.    Walls 


v.  Palmer,  64  Ind.  493,  and  some  of  the 
cases  cited  in  the  preceding  notes,  were 
referred  to.  Exley  v.  Berryhill,  37  Minn. 
182,  33  N.W.  Rep.  567;  Hey  v.  School- 
ey,  7  Ohio,  p.  II,  48. 

*  Judge  Thompson  said,  speaking  for 
the  court,  in  Burgess  v.  Hitt,  21  Mo. 
App.  313:  "The  judgment  or  order 
appealed  from  stands,  though  the  exe- 
cution thereon  is  suspended  during  the 
pendency  of  the  appeal  if  a  supersedeas 
bond  is  granted."  In  the  chapter  on 
Stay  of  Proceedings  the  rule  is  stated 
and  authorities  are  cited.  The  super- 
sedeas it  is  held  in  State  v.  Emmerson, 
71  Mo.  007.  as  it  was  in  one  of  our  own 
cases  referred  to  in  the  chapter  just 
designated,  does  not  operate  upon  the 
fees  of  the  clerk. 

5  The  doctrine  seems  to  have  been 
first  directly  asserted  by  our  court  in 
Kill  v.  Comparet,  16  Ind.  107,  and  the 
cases  there  relied  on  were  Cole  v  Con- 
nollv  [6  Ala.  271.  and  Syndam  v.  Hoyt, 
1  Dutch  (N.  J.),  230.  The  case  of  Nill 
v.  Comparet  has  been  very  often  cited 


THE  EFFECT  OF   AN    APPEAL.  463 

which  there  is  much  conflict  among  the  authorities,  but  in  this 
State  it  is  not  an  open  question.  This  doctrine  has  been  vigor- 
ously opposed  by  some  of  the  courts.  The  opponents  to  the 
doctrine  asserted  by  our  court  sustain  their  position  by  weighty 
arguments,1  but  there  is,  however,  much  to  be  said  in  favor  of 
the  rule  established  by  our  cases,  and  they  are  well  supported 
by  authority. 

§  548.  Supplying  Omissions  and  Correcting  the  Record  after  Ap- 
peal— There  is  some  diversity  of  opinion  upon  the  question 
whether  the  trial  court  can  correct  or  amend  its  record  after  the 
appeal  has  been  perfected,  some  of  the  courts  holding  that  the 
divestiture  of  jurisdition  is  so  complete  as  to  take  from  the  lower 
court  the  authority  to  direct  corrections  or  amendments  of  the 
record.  It  seems  clear  to  us  that  it  is  unduly  stretching  the  gen- 
eral rule  to  deny  that  authority,  and  that  it  is  a  violation  of  the 
principle  that  a  court  may  cause  its  record  to  speak  the  truth. 
The  court  in  directing  amendments  and  corrections  makes  no 
decision  upon  the  questions  involved  in  the  appeal,  nor  does  it, 
indeed,  decide  any  original  question  or  review  any  questions 
previously  decided.  It  simply  causes  the  record  to  truly  and 
correctly  present  the  questions  that  it  decided  and  to  properly 
exhibit  the  facts  or  pleadings  upon  which  its  decisions  were 
grounded.  It  does  no  more  than  correct  the  evidence  of  its  de- 
cisions and  of  the  grounds  upon  which  its  decisions  proceeded, 
for  in  strict  accuracy  the  record  is  only  evidence  of  what  took 
place,  although  it  is  evidence  of  such  high  character  as  to  im- 
port absolute  verity.  The  authorities  support  our  statement  that 
the  trial  court  may  correct  its  record  after  appeal.2  It  is  obvious 

and  approved.     State  v.  Krug,  94  Ind.  son,  86  Pa.  St.  176.     Some  of  the  cases 

366,  371;    Central  Union  Tel.    Co.    v.  make  the  right  to  sue  on  the  judgment 

State,    no   Ind.   203,   and   the    Indiana  dependent  upon  the  question  whether  a 

cases  cited   in  the  notes  which  follow,  stay  of  proceedings  has  been  secured. 

An  action  can  not  be  prosecuted  upon  Faber   v.  Hovey,   117   Mass.  107,  S.  C. 

the  same    cause  of  action    as    that  in-  19  Am.  Rep.  39S;  Taylor  ->.  Shew,  39 

volved  in  the  appealed  case.    Buchanan  Cal.  536. 

v.  Logansport,  etc.,  Co.,  71  Ind.  265.  2  Reynolds  v.  Sutliff,  71  Iowa,  549; 
1  Byrne  v.  Prather,  14  La.  Ann.  653;  State  v.  Delafield,  69  Wis.  264;  Kelly 
Atkins  v.  Wyman.  415  Me.  399;  Camp-  b.  Chicago,  etc.,  Co.,  70  Wis.  335;  Col- 
bell  v.  Howard,  5  Mass.  376;  Paine  v.  bert  v.  Rankin,  72  Cal.  197;  National 
Cowdin,i7  Pick.  142;  Woodward  t'.Car-  City  Bank  v.  NewYork,etc,  Exchange, 


|i;i  APPELLATE   PROCEDURE. 

that  any  other  rule  would  practically  prevent  a  true  statement 
and  presentation  of  the  case  from  being  made,  for  bills  of  ex- 
ceptions, record  entries,  and  the  like,  could  not  be  corrected  if  a 
different  rule  should  be  enforced.  The  appellate  tribunal  has 
power  over  its  own  records,  but  it  can  not  make  records  for  the 
trial  courts.  Those  records  are  made,  in  contemplation  of  law, 
before  the  power  of  the  appellate  tribunal  comes  into  existence. 

§  549.  A  new  Record  can  not  be  made — The  theory  upon  which 
amendments  to  records  are  made  by  the  trial  court,  after  an  ap- 
peal has  been  perfected,  is  that  a  new  record  is  not  made,  but 
that  an  existing  record  is  so  corrected  as  to  bear  true  evidence 
of  what  actually  occurred.  A  trial  court  can  not,  after  the  case 
is  removed  from  its  jurisdiction  by  appeal,  make  a  record  of 
facts,  evidence,  or  decisions,  that  did  not  exist  prior  to  the  ap- 
peal. The  record  it  corrects  is  one  made  before  the  appeal, 
but  not  correctly  or  properly  made.  No  new  element  can  be 
added  by  the  trial  court  to  the  case  carried  up  by  appeal,  but 
it  may  cause  the  record  to  accurately  exhibit  the  elements  and 
incidents  of  the  case  as  it  was  actually  presented  and  actually 
decided.1  It  is  evident,  therefore,  that  where  a  record  is  changed 
after  the  appeal  is  perfected,  the  change  is  unauthorized  and 
ineffective  unless  there  was  something  actually  existing  in  the 
past  which  made  a  change  necessary  in  order  to  a  full  or  ac- 
curate expression  of  the  truth. 

97  N.  Y.  645;  Chestnutt  v.  Pollard,  77         l  Lamburth  v.  Dalton,  9  Nev.  64. 
Texas,  86,  13  S.  W.  Rep.  352. 


CHAPTER  XXVIII. 


REHEARING. 


55°- 

Statutory'  provisions. 

551- 

Effect  of  filing  a  petition  for  re- 

hearing 

552- 

Time — Computation  of. 

553- 

All   acts  must  be   done  within 

the  time  fixed  by  law. 

554- 

Who  may  petition  for  a  rehear- 

555- 

ing. 
Office  of  the  petition. 

§  556.  Rehearing  not  granted  to  enable 
parties  to  secure  a  correction 
of  the  transcript. 

557.  Original  questions  can  not  be 
presented  by  a  petition  for  re- 
hearing. 

558.  A  second  petition  for  rehearing 
will  not  be  entertained. 

559.  Submitting  the  application. 

560.  Ruling  on  the  petition. 

561.  Effect  of  granting  the  petition. 

§  550.  Statutory  Provisions— The  statute  provides  that  either 
party  may  file  a  petition  for  rehearing  at  any  time  within  sixty 
days  after  the  determination  of  the  cause.1  We  suppose  that 
the  provision  declaring  that  a  party  may  petition  for  rehearing 
is  simply  declaratory  of  a  general  rule  of  law,  inasmuch  as  an 
.appellate  tribunal  of  high  rank  may,  without  an  express  grant 
of  power,  entertain  an  application,  during  the  term,  to  correct 
errors  into  which  it  may  have  fallen.  The  limitation  as  to  time 
is,  however,  effective,  and  the  uniform  practice  has  been  to 
decline  to  entertain  petitions  not  filed  within  the  time  pre- 
scribed.2 As  the  legislature  has  power  to  regulate  matters  of 
procedure  there  can  be  no  doubt  as  to  the  effectiveness  of  the 
limitation  upon  parties.  It  is  probably  true  that  the  legislature 
can  not  preclude  a  judicial  tribunal  from  correcting  errors  when 
they  are  exhibited  to  it,3  but  the  limitation  as  to  the  time  within 
which  a  petition  for  rehearing  must  be  filed  does  not  profess  or 

1  R.  S.  iSSi,§662.  31   HI-  3S5.     The  decision  in  the  case 

2  Board  of  Commissioners  v.  Brown,  last  cited   is  in  harmony  with  the  gen- 
14  Ind.  191;    Hutts  v.  Bowers,  77  Ind.  eral  rule  that  time  is  jurisdictional. 
2ii,   213.     Parties   can  not   waive    the  s  In  re  Jessup's  Estate,  81   Cal.  40S, 
time  bv  agreement.  Bernhard  v.  Brown,  22  Pac.  Rep.  102S. 


30 


(465) 


406  APPELLATE  PROCEDURE. 

attempt  to  abridge  the  inherent  power  of  the  court  in  that  re- 
gard. The  statutory  provision  designating  the  time  within 
which  a  petition  for  a  rehearing  may  be  filed  grants  a  right  to 
keep  a  case  open  beyond  the  term  at  which  the  judgment  chal- 
lenged was  pronounced,1  and  changes  the  general  rule  that  a 
judgment  can  not  be  "altered  after  the  expiration  of  the  term  at 
which  it  was  entered.  It  is  evident  from  the  provisions  with 
which  that  respecting  the  filing  of  a  petition  for  a  rehearing  is 
associated,  that,  in  cases  where  a  petition  is  duly  filed  within 
the  time  prescribed,  the  case  remains  open  until  action  is  taken 
upon  the  petition. 

§  551.  Effect  of  filing  a  Petition  for  Rehearing — Where  a  peti- 
tion for  rehearing  is  filed  within  the  sixty  days  prescribed  by 
the  statute  it  operates  to  prevent  a  certification  of  the  judgment 
to  the  trial  court  until  it  is  disposed  of  by  the  higher  court. 
This  conclusion  rests  upon  the  familiar  principle  that  where  a 
motion  or  petition  is  filed  which  keeps  the  case  open  the  judg- 
ment is  not  a  final  one.  The  statute  does  not,  in  terms,  declare 
what  shall  be  the  effect  of  filing  a  petition,  but,  upon  the  prin- 
ciple stated,  it  is  clear  that  until  an  order  or  judgment  is  en- 
tered disposing  of  the  petition  the  case  is  not  finally  disposed 
of  and  hence  remains  in  the  appellate  tribunal.  But  independ- 
ently of  the  rule  stated  the  fair  implication  from  the  language 
of  the  statute  is  that  where  there  is  a  petition  the  clerk  shall 
not  certify  the  case  to  the  trial  court  until  a  decision  overruling 
the  petition  is  pronounced,2  so  that  when  the  language  of  the 


1  Trustees  v.  Love,  29  111.  App.  615;  tition  is  overruled,  the  opinion  of  the 
Gallagher  v.  Kilkeary,  29  111.  App.  600.  appellate  tribunal  must  be  transmitted 

2  It  is  made  the  duty  of  the  clerk  of  to  the  trial  court.  The  statute  says, 
the  Supreme  Court  to  give  notice  of  the  "decisions  and  instructions  shall  be 
the  judgment  of  the  court  immediately  certified  to  the  court  below,"  and  the 
after  it  is  pronounced  to  the  clerk  of  long  continued  and  uniform  practice 
the  trial  court,  but  where  there  is  a  pe-  has  given  this  language  a  construction 
tition  he  can  not  certify  the  opinion  that  can  not  now  be  disregarded.  The 
down  until  the  case  is  finally  disposed  meaning  thus  assigned  the  statutory 
ofbv  the  appellate  tribunal.  R.  S.  1SS1,  provision  is  that  the  opinion  in  full 
§662.  It  may  be  added  that  where  there  shall  be  certified  to  the  clerk  of  the  trial 
is  no  petition   as  weu   as  where  the  pe-  court. 


REHEARING.  467 

statute  is  considered,  as  it  must  be,  in  connection  with  the  gen- 
eral rule,  all  doubt  is  dissipated. 

§  552.  Time — Computation  of — The  sixty  days  prescribed  is  as- 
certained by  excluding  the  day  on  which  the  judgment  assailed 
by  the  decision  was  rendered,  and  including  the  day  on  which 
the  petition  was  filed.  The  statute  prescribing  a  rule  for  the 
computation  of  time  is  general  in  its  character,  and,  as  the  de- 
cisions show,  has  been  applied  to  many  questions  of  procedure.1 
The  uniform  practice  has  been  to  apply  it  to  petitions  for  re- 
hearing. As  shown  elsewhere,  time  is  jurisdictional,  and  a 
party  who  fails  or  neglects  to  file  his  petition  within  the  time 
limited  will  not  be  heard.2  Doubtless,  this  general  rule  would 
not  apply  if  the  party  was  wholly  without  fault,  and  his  failure 
to  file  his  petition  within  the  time  described  was  owing  to  an 
unavoidable  accident,  but  to  break  the  force  of  the  general  rule 
a  very  strong  and  clear  case  must  be  made.3 

§  553.  All  acts  must  be  done  within  the  Time  fixed  by  Law — In 
accordance  with  the  general  rule  elsewhere  discussed,4  all  acts 
essential  to  prepare  the  case  for  consideration  upon  the  applica- 
tion for  a  rehearing  must  be  performed  within  the  time  limited 
by  law.  The  law,  in  fixing  the  time,  means  that  all,  and  not 
merely  part,  of  the  essential  steps  shall  be  taken  within  the 
prescribed  time,  inasmuch  as  there  is  no  authority  for  perform- 
ing any  of  the  required  acts  at  a  time  other  than  that  designated 
by  the  statute.5  The  rule  requiring  full  performance  within  the 
time  limited  is  indispensably  necessary  to  the  orderly  adminis- 

1  Hall's  Safe  and  Lock  Co.  v.  Rigby,  tition  in  due  time.  Durgin  v.  Neal,  82 
79  Ind.  150;  Rodenwald  v.  Edwards,  77  Cal.  595,  599,  23  Pac.  Rep.  375.  But, 
Ind.  221;  Faure  v.  United  States  Ex-  under  our  practice,  it  is  sufficient  to  file 
press  Co.,  23  Ind.4S;  Noble  v.  Murphy,  the  petition  within  the  time  prescribed. 
27  Ind.  502;  State  v.  Thorn,  2S  Ind.  3  Gough  v.  Root,  73  Wis.  32,  40  N. 
306;  Towell  v.  Hollweg,  Si  Ind.  154;  W.  Rep.  647,  41  N.  W.  Rep.  622.  See, 
Womack  v.  McAhren,  9  Ind.  6.  If  the  generally, Williams  v.  Conger,  131  U. 
last  day  falls  on  Sunday  it  may  be  ex-  S.  390;  Ogilvie  v.  Richardson,  14  Wis. 
eluded.  Hogue  v.  McClintock,  76  Ind.  157;  Strickland  v.  Draughan,  91  N.  C. 
205.  103;  Brant  :•.  Gallup,  117  111.  640. 

2  The  party  applying  for  a  rehearing  *  Ante,  §  12S. 

is   bound  to  exercise  diligence  and  to         5  Hawley   v.   Simmons,   101   111.  654; 
take  steps  to  insure  the  filing  of  his  pe-     Lacroix  v.  Camors,  34  La.  Ann.  639. 


468  APPELLATE  PROCEDURE. 

tration  of  justice  and  to  the  harmony  of  appellate  procedure.1 
The  principle  we  have  stated  requires  that  the  petitioner  should 
file  his  brief  within  sixty  days,  and  that  he  can  not,  as  of  right, 
file  a  brief  after  the  expiration  of  that  period.  The  rules,  as 
well  as  the  practice  of  the  court,  require  that  the  briefs  shall  be 
filed  within'the  time  designated,2  although  it  is  within  the  dis- 
cretion of  the  court,  upon  due  application,  to  extend  the  time 
for  filing  briefs,  but  not  to  extend  the  time  for  filing  the  petition 
except  where  cause  is  shown  sufficient  to  call  into  exercise  the 
general  equity  powers  of  the  court. 

§  554.  Who  may  Petition  for  a  Rehearing — The  fundamental 
principle  that  only  parties  who  are  injured  by  a  ruling  can  suc- 
cessfully complain,  requires  that  the  party  who  petitions  for  a 
rehearing  should  be  one  who  is  injured  by  the  decision.  It 
will  not  avail  him  to  show  injury  to  some  other  person.  It  is, 
therefore,  correctly  held  that  an  appellee  who  is  himself  not 
injured  by  a  decision  can  not  petition  for  a  rehearing,  although 
some  of  the  other  appellees  may  be  injured.3 

§  555.  Office  of  the  Petition— The  office  of  a  petition  for  a  re- 
hearing is  to  specifically  present  points  for  the  consideration 
of  the  court.  A  general  statement  that  the  court  erred  in  the 
conclusions  asserted  in  its  opinion  is  insufficient.4  The  petition 
should  state  what  conclusions  counsel  suppose  to  be  erroneous, 
and,  where  no  briefs  are  filed,  the  petition  should  contain  rea- 
sons and  authorities,  if  any  exist,  proving  that  erroneous  con- 

1  It  may  be  further  observed  that  time  principle   of    law,   and  one  that  good 

is  essential  insomuch  as  after  the  lapse  practice  requires  should  be  strictly  en- 

of  the  designated  period  the  case  should  forced. 

go  to  the  trial  court  and  when  it  reaches  'Jamison  v.  Barelli,  20  La.  Ann.  152. 

that  court  the  jurisdiction  of  the  appel-  *  In   Goodwin    v.  Goodwin,  4S    Ind. 

tribunal  is  at  an  end.    Peck  v.  San-  584,  the  court  said:     "The  office  of  a 

on,  18  How.  (U.  S.)  42;    Caldwell  petition  for  a  rehearing  is  not  to  request 

1     Bruggerman,  8  Minn.  2S6;  Browder  the  court  generally  to  re-examine   all 

-  .  Mc Arthur,   7  Wheat.  58.     See  post,  the  questions   in  the  record   or  all   the 

"Judgment  on  Appeal, "Chapter  XXIX.  questions    decided    against    the    party 

*  Rule  XXXVII.     The  rule  of  court,  filing  it,  but  it  is  to  point  out  particu- 

so  far  as  the  point  here  immediately  in-  larly  the  errors  the  court  is  supposed  to 

volved  is  concerned,  is  really  nothing  have  committed  in  the  decision  which  it 

more  than  the  declaration  of  a  general  has  made." 


REHEARING.  469 

elusions  were  asserted,  but,  under  our  practice,  the  reasons  and 
authorities  may  be  presented  by  briefs  filed  within  the  time 
the  law  prescribes,  although  the  particular  points  must  be  stated 
in  the  petition.1  General  statements  will  be  unavailing,  and 
assertions  can  not  supply  the  place  of  arguments  and  authori- 
ties.2 

§  556.  Rehearing  not  granted  to  enable  Parties  to  secure  a  Cor- 
rection of  the  Transcript — It  is  the  duty  of  parties  to  see  that  the 
record  is  complete  and  correct  before  the  case  is  taken  up  for 
consideration  by  the  court.  If  parties  permit  a  decision  to  be 
made  upon  a  defective  or  incorrect  record,  the  faul,t  is  their 
own,  and,  as  a  general  rule,  a  rehearing  will  not  be  granted  to 
enable  them  to  secure  an  amendment  or  correction  of  the  rec- 
ord.3 Any  other  rule  would,  it  is  evident,  tend  to  encourage 
negligence  and  result  in  wrong  to  the  community,  as  well  as  to 
the  courts,  since  it  would  delay  causes  and  impose  a  double 
duty  upon  the  judicial  tribunals,  inasmuch  as  it  would  require 
them  to  decide  the  cause,  once  upon  a  defective  record  and 
again  upon  a  corrected  record.  Parties  are  bound  to  do  all 
that  reasonable  care  and  diligence  require  to  secure  a  proper 
record  and  properly  present  the  questions  involved  before  the 
case  is  suffered  to  go  to  the  court  for  final  consideration. 

1  Fertich  v.  Michener,  m  Ind.  questions  are  decided,  although  there 
472,  486;  Western  Union  Telegraph  may  be  no  express  statement  of  them. 
Co.  v.  Hamilton,  50  Ind.  1S1.  Some  Fry  t>.  Currie,  103  N.  C.  203,9  S.  E.  Rep. 
of  the  courts  hold,  and  with  reason,  393;  Fisher  v.  Cid  Copper  Mining  Co., 
that  only  the  points  should  be  stated  in  97  N.  C.  95,  4  S.  E.  Rep.  703;  Sauls  v. 
the  petition.  Enright  v.  Grant,  5  Utah,  Freeman  (Fla.),  4  So.  Rep.  577;  Ruff- 
400,  16  Pac.  Rep.  595;  First  Nat.  Bank  ner  v.  Hill,  31  W.  Va.  428,  7  S.  E.  Rep. 
v.  Ashmead,  23  Fla.  379,  2  So.  Rep.  657.  13. 

2  Colvin  v.  Warford,  iS  Md.  273;  s  Warner  v.  Campbell,  39  Ind.  409; 
Wilson  t>.  Broder,  24Cal.  190;  Arizona,  Pittsburgh,  etc.,  Co.  v.  Van  Houtcn,  4S 
etc.,  Co.  v.  Copper  Queen  Co.  (Ariz.),  Ind.  90;  Cole  v.  Allen,  51  Ind.  122; 
11  Pac.  Rep.  396.  Merely  technical  Merrifield  v.  Weston,  6S  Ind.  70;  Por- 
points  will  not  be  considered  on  a  pe-  ter  v.  Choen,  60  Ind.  338;  State  v. 
tition  for  a  rehearing.  People  v.  Nor-  Terre  Haute,  etc.,  Co.,  64  Ind.  297,  303; 
they,  77  Cal.  61S,  634,  20  Pac.  Rep.  129.  Board  v.  Center  Township,  105  Ind. 
It  is  obvious  that  the  petition  must  show  422;  Bitting  v.  Ten  Eyck,  82  Ind.  421; 
a  material  error  affecting  the  ultimate  Schrichte  v.  Stites,  etc.,  127  Ind.  472; 
result,  or  it  can  not  be  granted.     Nor  Ross  v.  McGowen,  58  Texas,  603. 

will  it  be  granted  where  all  the  material 


470  APPELLATE   PRO( 


§  55 


7.   Original  questions  can  iiot  be  presented  by  a  Petition  for  a 

Rehearing—  It  is  the" policy  of  the  law  to  require  parties  to  pre- 
sent all  questions  in  the  briefs  originally  tiled,  and  not  to  per- 
mit new  points  to  be  made  in  the  petition  for  a  rehearing.  The 
rule  adopted  pursuant  to  this  policy  is  a  salutary  one,  and  one 
dictated  by  considerations  of  justice  as  well  as  by  expediency. 
If  parties  were  permitted  to  submit  cases  without  presenting 
all  the  material  points  a  loose  and  slovenly  practice  would  be 
encouraged,  and  the  administration  of  justice  would  be  delayed 
and  embarrassed.  To  tolerate  such  a  practice  would  impose 
the  duty  upon  the  courts  of  examining  and  deciding  cases  in 
detached  parts,  and  thus  delay  decisions,  produce  confusion 
and  encourage  conduct  not  consistent  with  fair  dealing  and 
good  morals.  The  rule  requiring  parties  to  make  all  important 
points  in  their  original  briefs  imposes  no  hardship  upon  them 
and  requires  no  extraordinary  thing.  Parties  are  bound,  in 
good  faith  and  by  just  principles,  to  give  full  and  careful  study 
to  the  cases  they  present  to  the  highest  courts  of  the  State,  and 
such  study,  if  properly  made  by  capable  counsel,  ought  to  bring 
to  light  every  point  of  importance.  The  general  rule  we  have 
stated  is  founded  on  solid  principle  and  is  well  supported  by 
authority.1  But  it  would  be  an  unreasonable  perversion  of  the 
general  rule  to  hold  that  a  party  may  not  adduce  additional 
arguments,  authorities,  or  illustrations  in  support  of  the  points 
properly  stated  and  presented  in  the  original  briefs.  If  the 
party  adheres  to  points  well  presented  by  the  original  briefs  he 
does  not  violate  the  rule  by  exhibiting  the  points  in  a  new  light 
and  strengthening  them  by  additional  arguments  or  authorities. 
If,  however,  he  has  not  specifically  stated  the  points  in  his 
original  brief  he  can  not,  without  a  violation  of  the  rule,  be  al- 

1  Yatert-.  Mullen,  24  Ind.  277;    Ilcav-  v.  First    National  Bank,   102  Ind.  464; 

enridge  v.  Month-.  34    Ind.  28;  Brooks  Succession  of  Broom,  14  La.  Ann.  67; 

v.  Harris,  42  Ind.  177:  Pittsburgh,  etc.,  Mateer  v.  i'.rown,  1  Cal.  221;  Kellogg 

Co.    v.    Ruby,  38   Ind.   294;     Hood   v.  v. Cochran,  87  Cal.  192,  12  Law.  Rep. 

Pearson,  67  Ind.  36S;  Graeter  v.  Will-  Anno.  104;   State  v.  Coulter,  40   Kan. 

.    55    Ind.  461;     Rikoff  v.    I'.rown,  87,673,  20  Pac.  Rep.  525;  Coleman  v. 

etc.,  Co.,  68  Ind.  388;  Board  v.  Hall,  70  Kells,  31  So.  Car.  601, 9  S.E.  Rep.  735; 

[nd     1.69;     Underwood    v.   Sample,   7".  Wachendorf  v. Lancaster, 61  Iowa, 509; 

Ind.  446;     Wasson    v.    First    National  Farrell  v .  Pingree,  5  Utah,  530,  17  Pac, 

Bank,  107  Ind.  206;   Union  School  Tp.  Rep.  453. 


REHEAR  INC.  471 

lowed  to  make  them  in  the  petition  for  a  rehearing.  A  party 
can  not,  however,  be  regarded  as  having  stated  a  point  where 
he  does  no  more  than  assert,  in  general  terms,  that  a  ruling 
was  erroneous.  He  must  state-  specifically  the  point  which 
shows  the  ruling  to  be  wrong,  for  a  mere  general  assertion  that 
a  ruling  is  wrong  is  not  "  the  making  of  a  point."  We  are,  it 
may  not  be  out  of  place  to  add,  here  speaking  of  "making 
points  "  on  a  petition  for  rehearing  as  a  matter  of  right  and 
with  reference  to  what  parties  may  do,  as  of  strict  right,  not  as 
to  what  the  court  may,  in  the  exercise  of  its  general  powers, 
permit  them  to  do. 

§  558.   A  second  Petition  for  Rehearing  will  not  be  Entertained— 

A  decision  upon  a  petition  for  rehearing  against  the  petitioner 
is  a  final  disposition  of  the  cause,  and  a  second  petition  from 
the  same  party  will  not  be  considered.1  This  doctrine  is  in 
harmony  with  the  general  rule  that  where  the  appellate  tribunal 
finally  disposes  of  a  motion  or  petition  the  matter  is  res  adjudi- 
cata.  The  doctrine  is  important  and  sound,  inasmuch  as  it  en- 
ables the  court  to  terminate  litigation  by  summarily  disposing 
of  a  second  petition  for  rehearing.  Some  of  the  courts  have, 
indeed,  characterized  the  conduct  of  counsel  in  filing  a  second 
petition  in  cases  where  the  first  has  been  denied  as  "  reprehen- 
sible and  deserving  of  punishment." 

§  559.  Submitting  the  Application— Applications  for  a  rehearing 
are  submitted  upon  written  or  printed  briefs,  and  oral  argu- 
ments are  not  heard.  The  record,  petition  and  brief  must  be 
returned  to  the  files  within  sixty  days  from  the  time  the  decision 
is  filed  with  the  clerk.  It  is  made  the  duty  of  the  clerk  to  enter 
an  order  overruling  the  petition  unless  the  petitioner  returns  the 
papers  within  the  time  designated.  After  the  papers  are  re- 
turned they  can  not  be  taken  from  the  files  by  the  petitioner, 
except  on  leave  granted  upon  a  special   written  application.2 

1  Garrick  v.  Chamberlain,  ioo  111.  476;  decisions  declaring  that   a  second   mo- 
Smith  v.  Dennison,  101  111.  657;  Coates  tion  to  dismiss  will  not  be  entertained 
v.  Cunningham,  100  111.  463;  Blatchford  as  well  as  bv  decisions    in  other  cases. 
v.  Newberry,  mo  111.  4S4.     The  general  Blair  v.  Lanning,  61  Ind.  499. 
principle  is   declared   and  enforced   bv         '!  Rule  XXXVII 


472  APPELLATE  PROCEDURE. 

The  rule  has  been  enforced  with  considerable  strictness,  and 
so  it  should  be,  since  the  practice  it  establishes  is  required  in 
order  to  prevent  delays  and  to  compel  parties  to  act  with 
promptness. 

§  560.  Ruling  on  the  Petition — The  court  is  not  bound  to  grant 
a  n-hearing  as  to  the  entire  case,  or  to  reopen  it  upon  all  ques- 
tions, but  it  may,  in  its  discretion,  open  the  case  as  to  specific 
questions.1  Nor  is  the  court  bound  to  adhere  to  the  opinion 
originally  delivered,  or  to  the  mandate  issued.  It  may  modify 
its  opinions  or  judgments  as  justice  requires,  without  granting 
the  prayer  of  the  petition  generally.2 

§  561.  Effect  of  granting  the  Petition — Where  a  petition  for  a 
rehearing  is  granted  generally  the  entire  case  is  open  for 
argument,  but  it  is  otherwise  where  the  rehearing  is  granted  as 
to  particular  points.3  The  granting  of  a  petition  as  to  the  en- 
tire case  authorizes  parties  to  make  new  points,  assume  orig- 
inal positions,  and  file  additional  briefs.4  So  far  does  the  rule 
go  that  where  a  petition  is  granted  admissions  made  in  the 
original  briefs  may  be  withdrawn.0  It  was  formerly  the  rule 
that  an  order  granting  a  rehearing  operated  to  set  aside  the 
submission,  but  this  doctrine  is  of  doubtful  soundness.  It  is, 
however,  unnecessary  to  consider  the  soundness  of  that  doc- 
trine for  the  rules  of  the  court  expressly  provide  that  the 
order  granting  a  rehearing  shall  not  have  the  effect  to  set  aside 
the  submission  and  that  the  case  may  at  once  be  taken  up  and 
decided.6 

1  Gatling  v.  Newell,  12  Ind.  11S;  City  of  Crawfordsville  v.  Johnson,   51   Ind. 

of  Crawfordsville  v.  Johnson,  51  Ind.  397. 

397.  *  Gilbert    V.  Southern,    etc.,   Co.,    62 

3  Luthe  v.  Luthc,   12   Col.  429;   Ma-  Itul.  522;    First  National  Hank  v.  First 

honv  v,   Mahony,  41    La.    Ann.    135,  5  National    Bank,  76   Ind.  561.     But,   as 

So.  Rep. 645;  Winter  z>.  Fulstone(Nev.),  decided  in  the  case  last  cited,  the  briefs 

21  Pac.Rep.  687.    See  Hasted  z>.  Dodge,  originally  filed  are  not   withdrawn  by 

7--  Iowa,  402,  39  N.  W.  Rep.  668.  the  order  granting  the  petition. 

3  Gatling  v.  Newell,  12  Ind.  11S;  City  b  Booker f . Goldsborough, 44 Ind. 490. 

0  Rule  XXVIII. 


CHAPTER   XXIX. 


THE  JUDGMENT  ON   APPEAL. 


§  562.    Authority  of  the  decisions  of  ap- 
pellate tribunals. 

563.  Effect  and  characteristics  of  the 

judgment  on  appeal. 

564.  Remanding  the  case  to  the  trial 

court. 

565.  Limits   of  the  power  to  direct 

specific  judgments. 

566.  Original  questions  of  tact. 

567.  Directing  a  specific  judgment. 
56S.    Directing  a  new  trial. 

569.  Remanding  with  instructions  to 

the  trial  court. 

570.  Remittitur. 

571.  Directing  the  specific  damages 

that  shall  be  awarded. 

572.  Directing  the  amount  of  recov- 

ery in  cases  where  the  facts 
appear  in  special  findings  or 
special  verdicts. 

573.  Costs  in  cases  where  a  remittitur 

is  entered. 


§  .574- 

575- 
576. 

577- 

57S. 
579- 

580. 
581. 

5S2. 

583- 
584- 
5*5- 

5S6. 


Affirming  as  to  some  of  the  par 
ties  and  reversing  as  to  others 

Dependent  rights — Judgments. 

Trial  court's  duty  to  obey  man- 
date of  the  appellate  tribunal. 

Scope  of  the  mandate  of  the  ap- 
pellate tribunal. 

The  law  of  the  case. 

Form  and  effect  of  the  judgment 
of  affirmance. 

Judgment  of  reversal. 

Costs  on  reversal — Apportion- 
ment of. 

Effect  of  reversal  upon  the  rights 
of  bona  fide  purchasers. 

Restitution. 

Restitution — Practice. 

Finality  of  the  judgment  on  ap- 
peal. 

Effect  of  a  petition  for  rehearing 
upon  the  rule  stated  in  the  pre- 
ceding paragraph. 


§  562.   Authority  of  the  Decisions  of  Appellate  Tribunals — The 

courts  invested  with  the  paramount  judicial  power  of  the  State 
must  necessarily  possess  very  comprehensive  authority  over  the 
judgments,  decrees  and  acts  of  the  nisi  -prius  courts,  since  the 
judgments  of  the  appellate  tribunals  are  the  authoritative  ex- 
pressions of  the  highest  officers  of  one  of  the  great  departments 
of  government.  It  is  essential  that  such  judgments  should 
be  respected  and  obeyed  by  all  courts  of  intermediate  and  in- 
ferior jurisdiction,  for,  if  it  were  otherwise,  the  rules  of  property 
and  the  rules  governing  the  rights  of  persons  would  remain  for- 
ever unsettled.  The  decisions  of  the  tribunals  of  last  resort  are 
as  binding  and  effective  as  any  other  authoritative  declarations 

(473) 


474  A1>n  ;1-  x  '  '    PROCEDURE. 

of  the  law  can  be.  It  is,  therefore,  justly  held  that  the  decisions 
of  the  appellate  tribunals  are  binding"  upon  all  courts  of  original 
jurisdiction.1 

§  •r>t;:>>.    Effect  and  Characteristics  of  the  Judgment  on  Appeal — The 

authority  of  the  appellate  tribunal  to  expound  and  declare  the 
law  is  not  confined  to  particular  instances,  as  appears  from  the 
statements  and  the  authorities  made  and  referred  to  in  the  pre- 
ceding paragraph,  for  its  declaration  of  a  general  rule  extends 
to  all  cases  belonging  to  the  class  fully  within  the  rule,  but 
as  to  particular  instances — those  in  which  the  judgments  are 
pronounced — the  decisions  on  appeal  have  the  greater 
force,  inasmuch  as  such  decisions  are,  as  we  shall  presently 
show,  conclusive  upon  all  points  full)'  involved  in  the  appeal 
and  necessarily  decided.2  As  the  authority  of  the  appellate  tri- 
bunal is  so  comprehensive  and  plenary  in  cases  submitted  to  it 
for  judgment,  it  must  necessarily  have  authority  to  determine — 
and  conclusively  determine — all  matters  of  law  involved  in  the 
appeal,  although  it  may  not  have  a  right,  as  will  be  subse- 
quently shown,  to  usurp  the  province  of  the  jury,  and  decide 
original  questions  of  fact.3  The  power  to  conclusively  determine 
all  questions  of  law  includes,  as  of  necessity,  the  authority  to 
so  direct  the  trial  court  that  its  decrees  or  judgments  shall  fully 
conform  to  the  law  as  declared  by  the  appellate  tribunal  on  ap- 
peal. This  authority  would  be  unreal  and  unsubstantial,  if  the 
appellate  tribunal  could  not  so  mold  its  decrees  or  judgments 
as  to  compel  the  trial  court  to  conform  to  its  decisions.  It  is 
also  necessary  that  the  authority  to  so  mold  its  judgments  as 
to  compel  the  entry  below  of  a  decree  or  final  judgment  award- 

1  Leard  v.  Leard,  30  Ind.  171;  Julian  ment  of  the  state.  1  Kent's  Com.  477. 
-  .  I'.'  al,  34  Ind.  371.  Bright  v.  Hutton,  12  Eng.  L.  &   E.,  15; 

2  Tin-  decisions  of  a  court,  no  mat-  Hutton  v.  Uptill,  2  II.  L.  Cases,  674; 
ter  how  high  its  rank  may  be,  are  not,  Yates  v.  Lansing,  9  Johns.  415;  Hart 
in  the  strict  sense,  the  law;  they  are,  v.  Burnett,  15  Cal.  530,  607;  Hibbits  v. 
however,  evidences  of  the  law,  and  pro-  Jack,  97  Ind.  570;  I  lines  v.  Driver,  89 

the  v  do,  from   the  tribunals  Ind.  339;   Paul   v.   Davis,  100  Ind.    422. 

invested  with  power  to  authoritatively  426. 

declare  the  law,  they  are  to  be  accepted  3  15  v   original  questions  of  fact,    we 

by  inferior  courts  as  the  law  until  over-  here  mean  questions  requiring  decision 

ruled  by  the   supreme  judicial  depart-  in  the  nisi  frius  courts. 


THE  JUDGMENT  OX   APPEAL. 


475 


ing  the  parties  what  the  law  gives  them,  should  reside  in  the 
appellate  tribunal,  in  order  to  entitle  it  to  direct  such  a  judg- 
ment as  shall  finally  end  a  controversy  in  all  cases  where  that  is 
required  by  the  law.  The  duty  of  appellate  tribunals  is  to  enter 
a  judgment  that  will  forever  close  the  controversy  wherever 
it  can  be  done,  without  unjustly  trenching  upon,  or  prejudicing, 
the  rights  of  the  parties  to  the  appeal.1  It  is  in  accordance  with 
the  principles  we  have  stated  that  it  is  held  that  an  appellate 
tribunal  is  not  bound  to  direct  a  judgment  on  the  facts  stated  in 
a  special  finding,  or  in  a  special  verdict,  but  may,  if  upon  an 
examination  of  the  whole  record  it  appears  that  justice  will  be 
better  and  more  surely  done  by  awarding  a  new  trial,  specifi- 
cally direct  the  trial  court  to  grant  a  new  trial  to  the  parties.2  It 
seems  clear  that  this  is  the  correct  rule  under  such  a  system  as 
ours,  where  equitable  and  legal  jurisdiction  are  united  in  the 
same  appellate  tribunal.  It  is  evident  that  any  other  rule  would 
often  work  injustice,  for  there  are  many  cases  where  the  whole 
record  shows  that  judgment  ought  not  to  be  rendered  on  a 
special  verdict  or  upon  a  special  finding.  It  would  be  in  many 
cases  a  sacrifice  of  substantial  justice  to  a  bald  technicality  to 


1  In  Luthe  f.Luthe,  12  Col.  42 1,21  Pac. 
Rep.  467,  the  court  said :  "Asa  rule,  we 
do  not  undertake  to  direct  the  entry  of 
judgments  in  matters  of  form,  but  in 
this  case,  to  the  end  that  there  may  be 
a  speedy  end  of  this  litigation,  we  will 
direct  the  entry  of  a  modified  decree  by 
the  county  court."  The  authorities 
hereafter  referred  to  make  it  clear  that 
it  is  the  right,  and,  indeed,  the  duty  of 
the  appellate  tribunal  to  prevent  litiga- 
tion from  being  prolonged  wherever  it 
can  justly  and  lawfully  be  done.  In 
McAfee  v.  Reynolds,  2S  N.  E.  Rep. 
423,  it  was  said:  "The  power,  as  the 
authorities  declare,  is  one  that  should 
be  freely  exercised  where  its  exercise 
will  put  an  end  to  litigation  and  jield 
justice.  To  accomplish  this  it  is  always 
proper  to  so  mold  the  form  of  the  man- 
date as  that  the  trial  court  may  carry 


into  effect,  by  the  appropriate  entries, 
the  judgment  of  the  appellate  tribunal." 
2  Bell  v.  Golding,  27  Ind.  173;  Bu- 
chanan v.  Milligan,  10S  Ind.  433;  West- 
ern Union  Tel.  Co.  v.  Brown,  10S  Ind. 
53S;  Sinker  v.  Green,  113  Ind.  264; 
Bartholomew  v.  Pierson,  112  Ind.  430, 
14  N  E.  Rep.  249;  Brown  -'.Jones,  113 
Ind.  46,  13  N.  E.  Rep.  S57;  Murdoch 
v.  Cox,  118  Ind.  266,  20  N.  E.Rep.7S6; 
Security  Co.  v.  Arbuckle,  119  Ind.  69; 
Louisville,  etc.,  Co.  v.  Etzler,  119  Ind. 
39,  44,  21  N.  E.  Rep.  466;  Roberts  :•. 
Lindley,  121  Ind.  56,  22  N.  E.  Rep.  967; 
Thomason  v.  Wood,  42  Cal.  416; 
Cooper  v.  Shepardson,  51  Cal.  298,300; 
Schroeder  v.  Schweizer,  60  Cal.  467. 47 1 ; 
Lapham  v.  Dreisvogt,  36  Mo.  App.  27;; 
Duck  v.  Peeler,  74  Texas,  26S;  11  S..W. 
Rep.  1 1 1 1 ;  Athens,  etc.,  Works  v.  Bain, 
77  Ga.  72;  McKenzie  :•.  Peck  (Wis.), 
42  N.  W.  Rep.  247. 


47G  APPELLATE  PROCEDURE. 

pronounce  judgment  upon  a  special  finding,  and  it  would  be  a 
reproach  to  the  law  to  hold  that  the  highest  courts  of  the  com- 
monwealth, possessing  both  law  and  equity  powers,  are  so  fet- 
tered by  technical  rules  as  to  be  incapable  of  giving  effect 
to  their  conceptions  of  right  and  justice.  It  may  be  added  that 
the  successful  party  in  a  case  where  there  is  a  special  finding 
or  a  special  verdict  can  not  with  propriety  move  for  a  new  trial, 
or  repudiate  a  favorable  decision,  and,  yet,  if  there  is  no  au- 
thority to  direct  a  new  trial  or  new  hearing  in  cases  where  the 
finding  or  verdict  is  defective  or  is  not  in  accordance  with  the 
evidence,  such  a  party  may  lose  the  benefit  of  a  good  cause  of 
action  or  a  valid  defense,  simply  because  he  does  not  do  what 
he  can  not  do  with  propriety,  or  what  it  would  be  unreason- 
able to  expect  him  to  do.  Considerations  of  expediency  join 
with  principle  in  requiring  that  the  appellate  tribunal  should  do 
what  the  whole  record  indicates  is  necessary  to  give  to  the 
parties  a  fair  opportunity  to  establish  their  rights.  The  appellate 
tribunal  is  not,  however,  bound  to  remand  the  case  for  a  new 
trial,  where  the  facts  fully  appear  in  a  special  finding  or  verdict, 
but  may,  if  it  deems  proper,  remand  the  case  with  instructions 
to  render  the  proper  judgment  on  the  facts.1 

§  564.   Reman  ding  the  Case  to  the  Trial  Court — The  power  of 

the  appellate  tribunal  to  frame  judgments  is  very  comprehen- 
sive, and  extends  over  all  classes  of  cases  where  the  facts  are 
admitted  of  record  or  there  appear  in  such  a  form  as  to  leave 
nothing  to  do  but  to  apply  the  law  to  them  by  an  appropriate 
judgment.  The  appellate  tribunal  may  pronounce  the  ultimate 
judgment  without  remanding  the  case  where  the  facts  are  not 
in  dispute,2  unless  the  statute  requires  that  the  case  should  be 
remanded  to  the  trial  court.  Our  statute  evidently  contemplates 
that  the  case  shall  go  back  to  the  trial  court  for  final  judgment 

1  McAfee  y.    Reynolds  (Ind.),  28  N.  U.  S.  21.     It  is  the   practice   in   many 

E  Rep.  423;  Parker  v.  Hubble,  75  Ind.  jurisdictions  for  the  appellate  tribunal 

580.       The    matter   is    necessarily    one  to  itself  pronounce  the  proper  judgment 

largely  resting  in  the  discretion  of  the  or  decree.     But  even  in  those  jurisdic- 

appellate  tribunal.  tions  the  appellate  tribunal  is  not  bound 

'-'  WicklffFe    V.   Owings,    17   How.  (U.  to  enter  the  ultimate  judgment,  for  it 

S.)  17:   Graham  v.  Bayne,  iS  How.  (U.  mav.  at  its  election,  remand  the  case  to 

10;    Semmes    -\    United    States,  91  the  trial  court. 


THE  JUDGMENT  ON   APPEAL.  477 

where  a  reversal  is  adjudged,  and  although  the  provisions  are 
somewhat  conflicting,  there  can  be  little  doubt  that  the  purpose 
of  the  legislature  was  that  the  appellate  tribunals  should  not  ren- 
der an  entirely  new  and  original  judgment  in  any  case  brought 
before  them  by  appeal.  They  do,  of  course,  render  a  judg- 
ment affirming,  reversing,  or  revising  the  decree  or  judgment 
below,  but  they  do  not  directly  render  the  specific  decree  or 
judgment  as  the  court  of  original  jurisdiction  does,  for  the 
mandate  remands  the  case.  This  is  so  whether  there  is  an  ex- 
press statement  in  the  mandate  to  that  effect  or  not,  since  the 
law  gives  the  judgment  on  appeal  the  force  and  operation  we 
have  ascribed  to  it.  But  the  effect  of  a  mandate  directing  the 
specific  decree  or  judgment  that  the  trial  court  shall  render  is 
almost  the  same  as  a  direct  judgment  by  the  appellate  tribunal : 
it  is,  indeed,  essentially  so  in  legal  effect.  This  is  clearly  so 
for  the  reason  that  where  the  trial  court  renders  a  decree  or 
judgment  in  obedience  to  the  mandate  that  judgment  or  decree 
is,  in  legal  effect,  that  of  the  appellate  tribunal.  The  appellate 
tribunal  decides  the  law  and  directs  the  trial  court  both  as  to 
the  law  and  its  application,  so  that  the  latter  is  little  more  than 
the  passive  instrument  of  the  former.1 

§  565.  Limits  of  the  power  to  direct  a  Specific  Judgment — While 
the  power  of  an  appellate  tribunal  to  modify,  correct  or  amend 
the  judgment  of  the  trial  court  is  very  comprehensive  it  is, 
nevertheless,  not  without  limit.  It  is  held  that  the  appellate 
tribunal  can  not  direct  the  trial  court  to  render  a  judgment  for 
a  sum  beyond  its  jurisdiction.2     This  must  necessarily  be  true 

1  In  Burnett  v.  Curry,  42  Ind.  272,  to  agree  what  the  court  shall  do,  and 
the  court, speaking  of  specific  directions  thereby  bind  the  court,  it  is  clearly 
given  the  trial  court,  said:  "This  we  wrong,  since  parties  can  not  by  agree- 
did  in  effect  by  fixing  the  basis  on  which  ment,  control  the  court  in  such  a  mat- 
the  judgment  should  be  rendered  and  ter.  It  is,  however,  to  be  said  that  the 
instructing  the  circuit  court  to  render  case  does  not  authoritatively  decide 
the  judgment  accordingly.  That  court  that  the  court  can  be  controlled  by  the 
had  but  one  duty  to  perform,  which  w  as  agreement  of  the  parties,  for  the  ques- 
to  render  judgment  as  directed.  It  tion  was  not  directly  presented  for  de- 
was,  in  effect,  the  rendition  of  judgment  cision. 

by  this  court."     In  so  far  as  the  court,        2  Glover  v.  Collins,  iS  N.  J.  L.  232. 

in  the  case  from  which  we  have  quoted,  See,  also,  Porter  v.  Foley,  21   How.     L" 

6cems  to  recognize  the  right  of  parties  S.)  393;    Bingham    v.  Cabot,  3   Dallas, 


478  APPELLATE  PROCEDURE. 

even  in  the  States  where  it  is  the  law  that  the  appellate  tribunal 
may  itself  render  the  proper  judgment  without  remanding  the 
case  to  the  trial  court.  Our  reason  for  saying  so  is  this :  The 
appellate  tribunal  being  essentially  one  of  review  and  having 
jurisdiction  only  in  cases  where  the  trial  court  has  jurisdiction, 
it  can  not  render  a  valid  judgment  in  a  case  where  none  could 
have  been  rendered  by  the  trial  court  from  which  the  appeal  is 
prosecuted.  The  provisions  of  the  Federal  and  the  State  con- 
stitutions guaranteeing  and  preserving  the  great  right  of  trial 
by  jury  impose  a  limit  upon  the  power  of  all  courts.1  Where 
there  is  a  disputed  question  of  fact,  arising  as  an  original  ques- 
tion for  decision,  in  a  case  where  there  is  a  right  to  a  trial  by 
jury,  no  court,  no  matter  what  its  rank  may  be,  can  disregard 
the  provisions  of  the  organic  law  and  decide  the  question.  Al- 
though it  is  implied  in  our  statement,  it  may,  nevertheless,  be 
well  enough  to  add,  for  the  sake  of  clearness,  that  the  right  to 
a  trial  by  jury  does  not  extend  to  questions  which  originate  on 
appeal  and  are  incidental  to  the  exercise  of  purely  appellate 
jurisdiction.  As  constitutions  are  to  be  construed  with  refer- 
ence to  existing  institutions  and  well  known  principles,  it  can 
hardly  be  possible  that  the  provisions  of  our  national  and  State 
constitutions  were  intended  to  apply  to  questions  of  fact  orig- 
inating on  appeal,  since,  at  common  law  juries  were  never 
called  to  determine  questions  originally  arising  on  appeal.2 

§  566.  Original  questions  of  Fact — It  is  a  necessary  sequence 
of  the  doctrine  stated  in  the  preceding  paragraph  that  the  ap- 
pellate tribunal  can  not  adjudicate  upon  original  disputed  ques- 
tions of  fact  in  cases  where  there  is  a  constitutional  right  to  a 
trial  by  jury,  but  where  there  is  no  such  right, — as,  for  instance, 
in  equity  cases,  or  cases  arising  under  the  exercise  of  the  right 
of  eminent  domain, — it  would  seem  that  the  weight  of  authority 

19;   Mordecai  v.  Lindsay,  19  How.  (U.  given.     Robertson  v.  Cease,  97   U.  S. 

S.)  199.     Where  the  defect  as  to  a  ju-  646;   Mordecai  v.  Lindsej,  supra. 

risdictional  fact    is    one    that    may    be  l  Jones  v.  Fortune,  128  111.  518,  21  N. 

cured  by  amendment  the  judgment  will  E.  Rep.  52$. 

be   reversed   generally,   but   where    the  2  See,  ante,  "  Supreme  Court,"  Chap- 

defect  is  one  not  curable  by  amendment  ter  III. 

positive   directions   to   dismiss   will  be 


THE  JUDGMENT  OX   APPEAL. 


479 


is  that,  in  the  absence  of  a  statute  forbidding  it,  such  questions 
may  be  determined  by  the  appellate  tribunal.  It  has  long 
been  the  practice  of  many  courts  to  decide  questions  of  fact  in 
suits  of  purely  equitable  cognizance,  but  under  our  code  such 
questions  are  not  for  the  appellate  tribunals  to  decide.  We 
believe  that  on  principle  appellate  tribunals  should  not  finally 
decide  such  questions  under  any  system.  Our  practice  has  been 
to  remand  all  cases  where  there  is  a  disputed  question  of  fact 
and  that  question  is  not  one  arising  as  an  original  question  on 
appeal,  so  that  a  practical  exposition  has  been  given  to  the  stat- 
ute which  can  not  be  departed  from  without  violating  a  funda- 
mental principle.1  Our  decisions  in  analogous  cases  clearly 
indicate  that  the  rule  is  the  same  in  equity  cases  as  in  other 
cases,  for  they  affirm  that  although  the  evidence  is  in  writing,2 


1  Bruce  v.  Schuyler,  4  Gilm.  221; 
Pike  v.  Megoun,  44  Mo.  491;  Hovey  v. 
State,  119  Ind.  3S6;  Board  v.  Bunting, 
in  Ind.  143;  Weaver  v.  Templin,  113 
Ind,  29S,  301 ;  Stuart  v.  Laird,  1  C ranch, 
299;  Martin  v.  Hunter,  1  Wheat.  304; 
Konor  v.  Happersett,  21  Wall.  162; 
State  f.  Parkinson,  5  Nev.  15;  People 
v.  Board,  100  111.  495;  Rogers  v.  Good- 
ing, 2  Mass.  475.  The  reporter's  note  to 
the  case  of  the  City  of  Jeftersonville  v. 
Steam  Ferryboat,  etc.,  35  Ind.  19,  con- 
veys an  erroneous  impression,  and  has 
misled  the  authors  of  some  of  our  di- 
gests. That  case  does  not  decide,  directly 
or  indirectly,  that  the  Supreme  Court 
will  render  a  judgment  directly,  but.  on 
the  contrary,  the  case  was  remanded, 
in  accordance  with  the  uniform  prac- 
tice, with  instructions  to  the  trial  court 
to  enter  the  proper  judgment.  The 
mandate  in  that  case  is  this:  "The 
judgment  is  reversed  with  costs,  and 
the  case  is  remanded  to  the  circuit 
court  with  instructions  to  render  judg- 
ment for  the  plaintiff  for  the  amount 
claimed."  An  important  and  influential 
reason  supports  the  general  doctrine  of 
the  text  and  that  is  this:  The  appellate 
jurisdiction  is  intrinsically  and  essen- 


tially one  of  review,  and  the  court  in- 
vested with  that  jurisdiction  can  not.  in 
any  way,  whether  it  be  a  suit  in  equity 
or  an  action  at  law,  determine  original 
questions  of  fact  without  departing 
from  sound  principle.  As  said  by  the 
Supreme  Court  of  California,  in  re- 
fusing to  decide  such  a  question:  "To 
do  so  would  be  to  exercise  original 
rather  than  appellate  jurisdiction." 
Ellis  v.  Jeans,  26  Cal.  272,  27S.  The 
earlier  cases  in  that  court  seem  to  have 
taken  a  different  view, but  they  have  been 
completely  overthrown.  Carpenter  :•. 
Gardiner,  29  Cal.  160;  Hayes  v.  Mar- 
tin, 45  Cal.  559;  Poorman  v.  Mills.  43 
Cal.  323.  The  doctrine  of  that  court 
seems  to  be  fairly  outlined  in  Lick  v. 
Diaz,  37  Cal.  437,  where  it  was  said: 
"  But  the  result  must  depend  on  con- 
troverted facts,  which  it  is  not  our 
province  to  determine,  and  it  is  there- 
fore impracticable  for  us  to  render  a 
final  judgment."  See  Wise  v.  Will 
iams,  88  Cal.  30,  25  Pac.  Rep.  1064;  Gay 
v.  Davey,  47  Ohio  St.  396,  25  X.  E. 
Rep.  425. 

1  Carr  v.  Haskett,  no  Ind.  152;  Mc- 
Connell  v.  Harrington,  10S  Ind.  405; 
Lake  Erie,  etc.,  Co.  v.  Griffin,  107  Ind. 


ISO 


APPELLATE  PROCEDURE. 


still,  the  appellate  tribunal  will  not  weigh  it,  but  will  accept 
that  which  the  trial  court  deemed  trustworthy.  It  is,  of  course, 
implied  in  what  we  have  said,  that  the  facts  must  be  in  dispute, 
for  where  there  is  no  disputed  question  of  fact,  nothing  remains 
but  to  apply  the  law  to  the  facts,  and,  as  the  court  must  always 
determine  what  the  law  is  and  how  it  shall  be  applied,  it  must 
determine  the  whole  cases  where  the  facts  are  undisputed.  This 
principle  is  declared  and  enforced  in  the  cases  which  hold  that 
the  court  may  direct  what  the  verdict  shall  be  in  cases  where 
there  is  no  conflict  in  the  evidence,1  and  it  is  asserted  in  other 
cases.2 


j.64,  473;  Miller  v.  Evansville  National 
Bank,  99  Ind.  272;  State  v.  Wasson,  99 
End.  261;  Pence  v.  Garrison,  93  Ind. 
545.  The  earlier  cases  held  that  in 
suits  in  equity  the  court  would  weigh 
the  evidence  on  appeal.  Egbert  v. 
Rush,  7  Ind.  706.  In  the  case  of  Nich- 
ols v.  Glover,  41  Ind.  24,  34,  it  was  said 
that :  "  The  evidence  being  all  written, 
we  can  judge  of  it  as  well  as  the  court 
below."  but  the  case  cited  can  not  be 
regarded  as  authority  upon  the  question 
here  under  immediate  discussion,  for,  in 
view  of  the  decision  upon  other  points, 
and  of  the  peculiar  form  in  which  the 
question  was  presented,  the  statement 
quoted  can  not  be  regarded  as  anything 
more  than  mere  dicta.  The  decisions 
which  declare  that  the  court  will  not 
weigh  evidence  mean  that  it  will  not 
weigh  the  testimony  of  witnesses  in 
cases  where  there  is  conflict,  for  it  can 
not  be  legally  possible  that,  where  all 
of  the  evidence  consists  of  written  in- 
struments, as  deeds,  agreements,  prom- 
issory notes  and  the  like,  the  appellate 
tribunal  will  not  determine  the  mean- 
ing, weight,  and  effect  of  such  evidence. 
American  Insurance  Co.  v.  Butler,  70 
Ind.  1. 

1  Crookshank  v.  Kellogg,  8  Blackf. 
256;  Nance  v.  Vance,  74  Ind.  370; 
Dodge  -  .  Gaylord,  53  Ind.  365;  Hall  v. 
Durham,    109  Ind.  434;   Wabash, 


Co.  v.  "Williamson,  104  Ind.  154;  Carver 
v.  Carver,  97  Ind.  497;  Weis  v.  City  of 
Madison,  75  Ind.  241,  254;  Parks  v. 
Ross,  11  How.  (U.  S.)  362;  Improve- 
ment Co.  v.  Munson,  14  Wall.  442; 
Pleasant  v.  Fant,  22  Wall.  116;  Dry- 
den  v.  Britton,  19  Wis.  22;  Lanet'.  Old 
Colony,  etc.,  Co.,  14  Gray,  143.  But 
where  there  is  competent  evidence  suf- 
ficient in  probative  effect  to  make  a  fair 
question  of  fact,  the  case  must  go  to  the 
jury.  Huff  V.  Cole,  45  Ind.  300;  Havncs 
v.  Thomas,  7  Ind.  3S. 

2  Taylor  v.  Lohman,  74  Ind.  41S; 
Stringer  v.  Northwestern,  etc.,  Co..  S2 
Ind.  100;  Robertson  v.  Huffman,  101 
Ind.  474;  Smith  v.  Kruger,  33  Ind.  86. 
The  principle  stated  is  illustrated  by  the 
cases  which  hold  that  where  there  is  no 
evidence  upon  a  material  point  the 
judgment  will  be  reversed.  Begein  V. 
Brehm,  123  Ind.  160;  Riser  v.  Beam, 
117  Ind.  31;  Hutchinson  v.  Trauerman, 
112  Ind.  21;  Roby  v.  Pipher,  109  Ind. 
345;  Ray  v.  1)111111.38  Ind.  230;  Vaughan 
v.  Godman,  103  1ml.  499;  Bevan  v.  Tom- 
linson.  25  Ind.  253.  It  is  obvious  that 
the  doctrine  of  the  cases  to  which  we 
have  referred  is  not  opposed  to  the 
rule,  asserted  in  a  vast  number  of  cases, 
that  the  court  will  not  disturb  a  finding 
or  verdict  in  a  case  where  there  is  some 
evidence  tairly  supporting  the  finding 
or  verdict    upon     all     material    points. 


THE   JUDGMENT  ON   APPEAL. 


481 


§  5G7.  Directing  a  Specific  Judgment — Where  the  facts  are  not 
in  controversy  and  are  fully  exhibited  by  the  record,  the  appel- 
late tribunal  may  direct  the  specific  judgment  that  shall  be  ren- 
dered.1 It  is  not,  of  course,  bound  to  give  specific  directions 
as  to  what  judgment  shall  be  entered,  but  it  may  rightfully  do 
so  when  justice  requires.  As  the  object  of  the  law  is  to  put 
an  end  to  litigation  the  power  to  direct  what  specific  judgment 
shall  be  entered  is  one  to  be  liberally  exercised  in  furtherance 
•of  justice.     It  has  often  been  exercised.2 

§  568.  Directing  a  New  Trial — Whether  a  new  trial  shall  be 
ordered  or  a  specific  judgment  shall  be  directed  is  a  matter  so 
largely  within  the  discretion  of  the  appellate  tribunal3  that  it 
■can  hardly  be  said  that  there  is  any  established  general  rule 
upon  the  subject,  except  that  which  forbids  the  trial  of  original 
questions  of  fact  in  cases  where   a   trial  by  jury  is  demandable 


Where  there  is  no  evidence,  the  ques- 
tion is  one  of  law  and  not  of  fact,  and 
whether  there  is  or  is  not  evidence,  is, 
in  all  appeals,  to  be  determined  from 
an  examination  of  the  record. 

1  City  of  Jeffersonville  v.  Steam  Fer- 
ryboat, etc.,  35  Ind.  19.  In  the  case  cited 
the  court  below  was  directed  to  render 
a  judgment  upon  the  agreed  statement 
of  facts.  The  authority  to  direct  the 
specific  judgment  has  often  been  exer- 
cised  in  cases  where  the  facts  appeared 
in  a  special  finding  or  in  a  special  ver- 
dict. McAfee  V.  Reynolds  (Ind.),  2S 
N.  E.  Rep.  423.  See,  generally,  Lemke 
v.  Dageling,  52  Wis.  49S;  Everit  v. 
Walworth  County  Bank,  13  Wis.  419; 
Schunck  v.  Gegenseitiger.  etc.,  44  Wis. 
369;  Baldenherg  v.  Warden,  14  W.  \'a. 
397;  Carroll  v.  Campbell.  25  Mo.  App. 
630;  Rosenfield  v.  Goldsmith  (Ky.),  12 
S.  W.  Rep.  92S.  We  have  collected  the 
cases  not  so  much  for  the  purposi 
sustaining  the  general  proposition  stated 
as  for  the  purpose  of  showing  the  appli- 
cation of  the  doctrine  to  particular  in- 
stances. 

31 


•  2  Smith  v.  Hubbard.  85  Tenn.  306.  2 
S.  W.  Rep.  569;  Oakland  Paving  Co. 
v.  Bagge.  79  Cal.439,  21  Pac.  Rep.  855; 
Loveland  :•. Gardner,  79Cal.317.21  Pac. 
Rep.  766;  Baltimore,  etc.,  Co.  v.  State, 
69  Md.  551,  16  Atl.  Rep.  212;  Willev  v. 
Morrow,  1  Wash.  Tv.  474;  Grundy  V. 
Pine  Hill  Coal  Co.  (Ky.),  9  S.W.  Rep. 
414;  Baltimore,  etc.,  Co.  v.  State,  69 
Md.  551,  16  Atl.  Rep.  212.  See,  gen- 
erally.Wood  v.  State.  27  Tex.  App.  53S, 
11  S.W.  Rep.  525:  Underwood  r.  Riley. 
19  Wis.  412;  Pryce  V.  Security  Ins.  Co., 
29  Wis.  270;  Schmidt  V .  Gilson.  14  Wis. 
514.  Where  a  defect  in  a  pleading  ap- 
pears to  be  amendable  the  court  may, 
if  it  deems  it  proper  in  the  furtherance 
of  justice,  remand  with  instructions  to 
permit  an  amendment.  Rigg  v.  Par- 
sons, 29  W.  Va.  522.  2  S.  E.  Rep.  Si; 
Love  r.Tinsley.  1,2  W.Va.  25.9  S.E.Rep. 
44.  Ordinarily,  however,  the  appellate 
tribunal  gives  judgment  upon  the  plead- 
ings as  they  appear  in  the  record  where 
the  only  error-  alleged  are  based  upon 
ridings  on  the  pleadings. 
3  J ///<•,  SS  563. 


482  APPELLATE  PRO<  EDURE. 

as  a  matter  of  right  under  the  provisions  of  the  constitution 
guaranteeing  the  great  common  law  right  of  trial  by  jury.  But, 
although  there  is  no  fixed  rule,  beyond  that  stated,  it  is  the 
uniform  practice  to  remand  for  a  new  trial  or  hearing  when  it 
appears  that  such  a  course  will  best  secure  justice.  It  is  the 
practice  where  facts  have  been  kept  from  the  jury  by  the  erro- 
neous exclusion  of  evidence  to  remand  the  case  for  a  new  trial.' 
So,  where  incompetent  evidence  is  erroneously  allowed  to  go 
to  the  jury  the  case  will,  as  a  general  rule,  be  remanded  with 
instructions  to  award  a  new  trial  of  the  whole  case.2  This  is 
clearly  the  correct  doctrine.  The  jury  are  the  judges  of  the 
facts,  and  if  the  trial  court  improperly  excludes  evidence3  they 
are  not  allowed  to  be  fully  invested  with  knowledge  of  the 
facts,  and,  presumptively  at  least,  can  not  correctly  decide  the 
questions  at  issue  between  the  parties  ;  on  the  other  hand,  if 
incompetent  evidence  is  admitted,  the  jury  are  authoritatively 
put  in  possession  of  matters  which  they  ought  not  to  be  per- 
mitted to  consider.  In  legal  contemplation  a  jury  can  not  justly 
decide  a  case  where  material  facts  are  kept  from  them,  nor  can 
they  justly  decide  a  case  where  the  court  admits  incompetent 
evidence.  In  the  one  case  the  court  impliedly  affirms  that  the 
facts  kept  from  them  must  not  be  considered  ;  in  the  other,  it 
impliedly  directs  them  to  consider  what  they  have  no  right  to 
regard. 

§  569.   Remanding  with  Instructions  to  the  Trial  Court— Where 

the  facts  are  not  in  dispute  or  where  it  is  evident  that  no  re- 
covery can  be  had  in  the  particular  instance  the  appellate  tri- 
bunal may  remand  the  case  with  instructions  to  dismiss  the  ac- 
tion or  to  enter  a  final  judgment  in  favor  of  the  party  entitled 
to  it  under  the  law.4     So,  on  the  other  hand,  it  is  proper  for  the 

1  Bordcntown,  etc.,  v.  Flannagan,  41  for  if  the  evidence  is  immaterial  or  with- 
N.  J.  L.  us;  Parker  v.  Meadows,  86  out  influence,  the  ruling  upon  it,  il- 
Tenn.  1S1,  6  S.  W.  Rep.  49.  though  it  may  be  wrong,  is  harmless. 

2  The  case  of  St.  Croix,  etc.,  Co.  v.  *  Somerville  r.  Reid,  35  Ga.47;  Cran- 
Richie,  73  Wis.  409,  415,  41  N.  W.  Rep.  ford  v.  Wingfield,  25  Texas,  414;  Bin- 
n/14,  asserts  a  general  principle  sustain-  nev  v.  Chesapeake,  etc..  Co.,  S  Pet.  214; 
ing  the  doctrine  of  the  text.  Brackett  v.  Griswold  (N.  Y.),  2S  N.E. 

s  It  is  implied,  of  course,  that  the  evi-      Rep.  365. 
dence  must  be  material  and  influential, 


THE  JUDGMENT  ON    ATI 


48,' 


court  where  justice  requires  it,  to  direct  that  the  affirmance 
shall  not  preclude  another  action.1  So,  too,  amendments  may 
be  suggested  or  directed  in  furtherance  of  justice,  and  direction 
may  be  given  to  admit  parties.2  It  is  safe  to  affirm  that  the  re- 
sult of  all  the  particular  instances,  as  a  valid  inductive  process 
will  show,  is  that  the  judgment  on  appeal  may  so  direct  the 
trial  court  as  to  require  it  to  vary,  amend  or  modify  its  decree 
or  judgment  as  to  make  it  effectively  yield  justice  to  the  parties 
whose  interests  are  involved.3 

§  570.  Remittitur — It  is  a  common  practice,  and  one  fully  de- 
fensible on  principle,  to  direct  that  a  remittitur  shall  be  entered, 
and  if  none  be  entered  that  the  judgment  be  wholly  reversed.1 
This  course  leaves  the  party  an  election  to  remit  part  of  the 
damages  assessed  in  his  favor  or  to  suffer  a  reversal  and  take  the 
chances  of  another  trial.  It  seems  just  to  allow  this  election, 
since  the  party  may  be  able  to  supply  needed  evidence  or 
omissions  on  a  second  trial.  Nor  is  there  any  injustice  to  the 
appellant  since  he  receives,  under  such  a  practice,  all  that  he 


1  White  v.  Poorman,  24  Iowa,  108; 
Shafer  v.  Newlan,  29  111.  44. 

2  McCalop  v.  Fluker,  12  La.  Ann. 
551;  Mabey  7'.  Atkins,  10  Wall.  419; 
be  Wolf  v.  Haydn,  24  111.  525.  See, 
generally,  Sankey  v.  Sankey,  S  Ala. 
601;  Crosby  t\  McDermitt,  7  Cal.  146; 
Moores  v.  McConnell,  17  La.  Ann.  S4; 
Sanborn  r. Webster,  2  Minn.  323;  Lewis 
v.  Darling,  16  How.  (U.  S.)  1. 

3  Wortham  v.  Harrison,  8  Texas,  141 ; 
Stanard  v.  Brownlow,  3  Munf.  (Va.) 
229;  Myers  v.  Kendrick,  13  Iowa,  599; 
Chittenden  v.  Brewster,  2  Wall.  191; 
Burleson  v.  Burleson,  15  Texas,  423; 
Woodward  v.  Howard,  13  Wis.  557; 
Waring  v.  Gilbert,  25  Ala.  295;  Mc- 
Clure  v.  Lay,  30  Ala.  20S;  Bradley  v . 
Root,  5  Paige,  632;  Shollenberger  v. 
Brinton,  52  Pa.  St.  9;  McCaw  t/.Blew- 
itt,  1  Bailey  (So.  Car.),  Ch.  98. 

4  Giles  v.  Law,  14  Ind.  16;  Simpson 
V.  Shafer,  20  Ind.  306;  Schafer  v.  Smith, 
6S  Ind.  226;    Frazer  7'.  Boss,  66  Ind.  1; 


Pate  7-.  Roberts,  55  Ind.  277;  Cravens 
v.  Duncan,  55  Ind.  347;  Boyle  v.  Carter, 
24  111.  49;  Doll  v.  Feller,  16  Cal.  432; 
Hitchings  7\  Van  Brunt,  38  N.  Y.  335; 
Porter  v.  Grimsley,  9S  N.  C.  550,  4  S. 
E.  Rep.  529;  Kavanaugh  7'.  Janesville, 
24  Wis.  618;  Smith  7'.  Schulenberg.  34 
Wis.  41 ;  Bigelow  7'.  Doolittle,  36  Wis. 
115;  Single  v.  Schneider,  30  Wis.  570; 
McHugh  7'.  Chicago,  etc.,  Co.,  41  Wis. 
75;  Tyson  7'.  Milwaukee,  etc.,  Co.,  50 
Wis.  7S.  A  party  may,  of  course,  vol- 
untarily enter  a  remittitur.  Buse  7'. 
Russell,  86  Mo.  209;  Kimes  v.  St.  Louis, 
etc.,  Co.,  S5  Mo.  611;  Murray  v.  Phil- 
lips, 59  Ind.  56.  It  has  been  held  that 
where  the  judgment  awards  the  party 
more  land  than  he  was  entitled  to  he 
may  obviate  a  reversal  by  a  remittitur . 
Gibson  7'.  Choteau,  50  Mo.  S5.  But 
compare  Allen  v.  Claybrook,  5S  Mo. 
124;  Keen  v.  Schnedler,  15  Mo.  App. 
59°- 


484  APPELLATE  PROCEDURE. 

can  justly  claim,  namely,  a  general  reversal.  But  broad  as  is 
the  right  of  a  party  to  enter  a  remittitur,  it  is  not  allowed  to 
destroy  the  right  of  appeal  after  jurisdiction  attaches.1 

§  571.   Directing  the  specific  Damages  that  shall  be  Awarded — 

Some  of  the  courts  carry  the  doctrine  upon  which  rests  the 
rule  that  a  party  may  be  directed  to  enter  a  remittitur  or  be 
compelled  to  submit  to  a  new  trial  to  great  lengths,  for  they  as- 
sert that  the  court  may  fix  the  amount  of  the  recovery  even 
where  there  are  no  data  upon  which  a  definite  calculation  can  be 
made  and  no  fixed  rule  for  measuring  the  amount  of  the  re- 
cover}-.2 We  suppose  it  to  be  clear  that  where  a  mere  calcu- 
lation exposes  the  error  and  the  calculation  rests  upon  written 
instruments,  or  upon  evidence,  definitely  fixing  the  amount  of 
recovery,  the  appellate  tribunal  may  direct  what  damages  shall 
be  awarded,  but  where  there  are  no  such  data  and  no  fixed  rule 
we  doubt  the  power  of  the  court  to  absolutely  direct  what  dam- 
ages shall  be  assessed.3  To  illustrate  the  meaning  we  desire  to 
convey  we  say  that  we  believe  such  a  direction  would  be  proper 
where  the  action  is  on  a  bill  of  exchange,  promissory  note,  or 
the  like,  but  not  in  an  action  for  personal  injuries  caused  by 
culpable  negligence  or  intentional  wrong.  It  seems  to  us  that 
in  actions  of  the  class  last  named  the  court,  in  directing  what 
damages  shall  be  awarded,  invades  the  province  of  the  jury 
and  violates  the  rule  that  a  judgment  can  not  be  directed  for  a 
specific  sum  where  there  is  no  definite  rule  which  separates  the 
elements  of  damages.  It  is,  we  suppose,  quite  clear  that  a 
trial  court  could  not  direct  what  damages  a  jury  should  allow 
in  nn  action  for  personal  injuries,  although  it  might  grant  a 
new  trial,  and  it  is  difficult  to  conceive  any  solid  principle  upon 
which  the  claim  of  an  appellate  tribunal  to  fix  the  damages  in 
such  cases  can  be  rested,  for  it  has  no  more  right  to  assume 
the  functions  of  a  jury  than  has  the  court  of  original  jurisdic- 
tion.    Nor  is  it  possible  in  such  an  action  to  separate  and  dis- 

1  Ante,  §  62.  heimer,  S6  Ala.  541,   5  So.    Rep.  870; 

?  Harbour  v.  McKee,  7  Mo.  App.  587;  State  v.  Baougham,  20  Iowa,  497;  Cady 

Kimes  v.  St.  Louis,  etc.,  Co.,  S5   Mo.  v.  Milwaukee,  etc.,  Co.,  5  Dak.  97,  37 

611.  N.  W.  Rep.  221. 

3  North    America  Ins    Co.  v.  Fore- 


THE  JUDGMENT  OX   APPE  \L.  485 

tinguish  the  excessive  and  illegal  damages  from  the  legal  and 
legitimate,  and  where  this  can  not  be  done  there  can,  as  has 
been  held  by  able  courts,  be  no  specific  and  positive  direction 
as  to  the  amount  that  shall  be  assessed  as  damages.1 

§  572.  Directing  the  amount  of  Recovery  in  cases  where  the  facts 
appear  in  Special  Findings  or  Special  Verdicts — Where  the  facts 
appear  in  a  special  rinding  or  in  a  special  verdict,  it  is  proper 
for  the  appellate  tribunal  to  rectify  an  error  in  the  assessment 
of  damages  by  directing  the  specific  amount  for  which  judg- 
ment shall  be  entered  in  cases  where  the  damages  are  severable 
and  the  verdict  or  finding  supplies  the  data  for  determining  what 
part  is  justly  assessed  and  what  part  is  wrongly  awarded.  But 
even  in  cases  where  the  facts  appear  in  special  verdicts  or  find- 
ings, the  specific  amount  can  not,  as  we  think,  be  directly  fixed 
by  the  appellate  tribunal  unless  the  items  included  in  the  sum 
named  as  damages  are  susceptible  of  severance.  We  suppose  that 
if  a  gross  sum  should  be  designated  in  an  action  for  personal 
injuries  the  appellate  tribunal  could  not  absolutely  designate 
the  amount  for  which  judgment  should  be  rendered,  unless  it 
appeared  that  improper  elements  entered  into  the  computa- 
tion, and  that  such  elements  could  be  separated  from  the  other 
elements  which  entered  into  the  assessment  of  damages  made 
by  the  court  or  jury  that  tried  the  case.  We  do  not  assert  that 
the  appellate  tribunal  may  not  require  the  successful  party  to 
elect  to  enter  a  remittitur  or  suffer  a  reversal,  for  that  we  be- 
lieve may  be  done  in  any  case,  but  we  do  assert  that  the  appel- 
late tribunal  can  not  in  ordinary  cases  of  recoveries  for  personal 
injuries,  or  the  like,  where  an  assessment  of  damages  is  made 
in  gross,  deny  an  election  and  absolutely  direct  what  the  re- 
covery shall  be.  This  must  follow  from  the  well  settled  and 
well  known  rule  that  there  is  no  fixed  standard  for  the  exact 
measurement  of  damages,  although   there   are  certain  general 

1  Potter  -'.  Chicago,  etc.,  Co.,  22  Wis."  tions  for    personal    injuries,    the  court 

615;     Page  V.    Sumpter,    53    Wis.   652;  can   not    absolutely   direct   what    part 

Pendergast  v    Hodge,  21  Mo.  App.  138;  shall    be    remitted,   and    that    the  only 

Cook  v.  Hannibal,  etc.,  Co.,  63  Mo.  397.  course  is  to  remand  the  case  for  a  new 

It  seems  to  us  that  where  the  damages  trial. 
are- assessed  in  grov*.  as  they  are  in  ac- 


APPELLATE   PROCEDURE. 

rules  to  be  observed  in  ascertaining  and  assessing  the  damages.1 
The  cases  generally  affirm  that  in  actions  for  personal  injuries 
the  amount  of  the  recovery  is  to  be  fixed  by  the  jury,  although 
it  is  the  duty  of  the  court  to  so  instruct  them  as  to  prevent  them 
from  taking  improper  elements  into  consideration.2 

§  573.  Costs  in  cases  where  a  Remittitur  is  entered — Where  a 
party  enters  the  proper  remittitur  on  appeal  the  general  rule  is 
that  the  judgment  will  be  affirmed,  but  the  affirmance  will  be  at 
the  costs  of  the  party  who  enters  the  remittitur.  This  is  the 
ordinary  rule,  whether  the  remittitur  is  voluntarily  entered  by 
the  party,  or  is  entered  by  direction  of  the  court.3  While  the 
general  rule  is  as  we  have  stated  it,  there  are,  as  we  suppose, 
some  exceptions  to  it,  although  the  exceptions  can  not  be  very 
important  or  very  numerous.  The  comprehensive  powers  of 
an  appellate  tribunal  are  such  that  it  may  apportion  costs  as  the 
justice  of  the  particular  case  may  require. 

§  574.  Affirming  as  to  some  of  the  Parties  and  Reversing  as  to 
Others — Where  the  interests  of  the  parties  to  an  appeal  can  be 
rightfully  severed,  the  trial  court  may  affirm  as  to  some  of  the 
parties  and  reverse  as  to  others.4     It  is,  indeed,  the  rule  that 

1  Damages  are,  of  course,  to  be  com-  must,  in  cases  where  a  remittitur  is  en 
pensatory,  but  what  shall  be  a  just  com-  tered,  be  within  the  discretion  of  the 
pensation  is  to  a  great  extent,  although  court.  But  the  general  rule  stated  lr. 
not  entirely,  a  matter  for  the  jury.  Ta-  the  text  applies  in  the  very  great,  ma 
ber  v.  Huston,  5  Ind.  322;  Carthage,  joritj'  of  cases.  And  the  rule  jusuy 
etc.,  Co.  v.  Andrews,  102  Ind.  138;  applies  in  most  cases.  This  is  so  io: 
Pennsylvania  Co.  v.  Marion,  104  Ind.  the  reason  that  where  a  remittitur  is 
239;  Louisville,  etc.,  Co.  v.  Falvey,  104  directed  it  is  implied  or  declared  mai 
Ind.  409;  Board  v.  Legg,  no  Ind.  479.  something  was  awarded  the  appenee  to 

2  City  of  Delphi  v.  Lowrey,  74  Ind.  which  he  was  not  entitled,  ana  where 
520.  this  is  true,  there  is  a  meritorious  right 

s  Johnston   v.  Morrow,  60  Mo.  339;  of  appeal.     If  there   is   a   meritorious 

Miller  v.  Hardin,  64  Mo.  545;  Clark  v.  right  if  appeal  the  party  who  success- 

Bullock,  65  Mo.  535;  Peck  v.  Childers,  fully   asserts   it  can   not  be  justly  bur- 

7;  Mo.  484;   Higgs  v.  Hunt,  75  Mo.  106.  dened  with  costs. 

Particular  cases  must,  of  necessity,  be  *  Cairns  V.  O'Bleness,  40  Wis.  469; 

governed  by  special  rules.     No  general  Sutton     v.    McConnell,    46    Wis.   269; 

rule  can  be  formulated  that  will  fitly  or  Rogers  v.  Weil,   12  Wis.  664;  Blum  v. 

justly  apply  to  all  cases.     In  no  small  Strong,  71  Texas,  321,  6  S.  W.  Rep.  167; 

degree  the  matter  of  apportioning  costs  Hamilton  v.  Prescott,  73  Tex.  565,  n  S. 


THE  JUDGMENT  ON   APPEAL. 


487 


where  the  errors  do  not  affect  the  parties  jointly,  they  must 
sever  in  their  assignment  of  errors,  for  it  has  often  been  ad- 
judged that  an  assignment  of  errors  not  good  as  to  all  the  parties 
who  join  in  it  is  not  good  as  to  any  of  them.  It  must  result,  as 
a  necessary  conclusion  from  this  firmly  established  doctrine, 
that  separate  judgments  not  only  may  be  rendered,  but  often 
must  be  rendered  on  appeal.  But  there  may,  of  course,  be 
cases  where  the  reversal  must  be  of  the  entire  decree  or  judg- 
ment, although  the  interest  of  the  parties  may  not,  in  strict- 
ness, be  joint.  The  rule  seems  to  be  that  where  justice  can  not 
be  fully  done,  or  the  rights  of  the  parties  fully  adjudicated  with- 
out a  new  trial  of  the  case  or  a  new  hearing  of  the  suit,  the  en- 
tire judgment  or  decree  will  be  reversed  and  a  new  trial  or  new 
hearing  ordered.1  Where  the  rights  of  one  party  are  dependent 
upon  those  of  another  or  others,  as  often  happens,  it  is  neces- 
sary  that  the  judgment  be  reversed  with  such  instructions  as 
will  require  a  new  trial  or  new  hearing.2 

W.  Rep.  548;  Boone  v.  Hulsey,  71  Tex.  court  referred  to  Bayless  v.  Daniels, 
176.  q  S.W.  Rep.  531;  Steeple  v.  Down-  8  Texas,  140;  Houston  v.  Ward,  8 
ing,  60  Ind.  47S;  Fields  v.  Moul,  15  Abb.  Texas,  124;  Hopson  v .  Murphy,  4Tex- 
Pr.  Rep.  6;  Mannsfield  v.  Allen,  85  Mo.  as,  248;  Burke  v.  Cruger,  S  Texas,  66, 
1502.  Where  there  is  a  joint  judgment  and  other  cases.  These  cases  were  re- 
in which  the  interests  are  blended  it  can  viewed  by  the  court  and   it  was  said: 


not  be  reversed  as  to  one  of  the  joint 
parties  only.  This  is  the  general  rule. 
McGillis  v.  Bishop,  27  111.  App.  53. 
But  under  the  statutory  provisions  re- 


"We  think  the  conclusion  to  be  deduced 
from  the  apparently  conflicting  cases 
is  that  this  court,  when  it  finds  error  in 
the  proceedings  of  the  lower  court  as  to 


specting  co-parties,  it  is  probable  that     any  party  to  the  judgment,  and  not  as 


there  are  exceptions  to  the  rule.     See, 
"Parties,"  ante,  Chapter  VII. 

1  Gaar  v.  Millikan,  6S  Ind.  208.  The 
court  said  in  the  case  cited:  "The 
Kennards.  therefore,  are  not  entitled  to 


to  another,  and  that  a  proper  decision 
of  the  case  as  to  one  is  not  dependent 
upon  the  other,  will  reverse  in  part  and 
affirm  in  part,  but,  where  the  rights  of 
one  party  are  dependent  in  any  manner 


a    reversal    of  the    judgment    on  their     upon  those  of  another,  it  will  treat  the 
own  account,  but  as  the    affirmance  of    judgment  as  an   entirety,  and,  where  a 


the  judgment  as  to  them  might  pos- 
sibly embarrass  the  appellee  in  the 
further  prosecution  of  his  alleged  cause 
of  action  against  the  appellant,  Abram 
Gaar,  it  has  seemed  to  us  that  the  ends 
of  justice  would  probably  he  subserved 
by  the  reversal  of  the  entire  judgment." 
2  Hamilton  v,  Prescott  73  Tex.  565,  1 1 
S.  W.  Rep.  548.     In   the  case  cited  the 


reversal  is  required  as  to  one  it  will  re- 
verse the  judgment  as  a  whole."  The 
doctrine  of  the  case  from  which  we  have 
quoted  is  a  sound  one,  and  supplies, 
perhaps,  as  good  a  test  as  can  be  given 
for  determining  when  a  judgment 
should  be  treated  as  an  entirety  and  as 
such  reversed. 


488  APPELLATE  PROCEDURE. 

§575.  Dependent  Rights  —  Judgment — According  to  the  test 
suggested  in  the  case  cited  in  the  note  to  the  preceding  para- 
graph,1 a  judgment  on  appeal  necessarily  reverses  a  judgment 
and  sends  back  the  entire  case  for  a  new  trial  or  new  hearing 
where  the  rights  of  the  parties  are  blended,  although  there  may 
not,  in  strictness,  be  a  joint  interest.  This  rule  must  prevail  in 
many  cases  where  the  interests  of  different  lien-holders  are  in- 
volved, since,  while  there  may  not  be  an  absolute  unity,  there 
is,  nevertheless,  such  a  dependency  of  interests  as  makes  it 
necessary  to  treat  the  decree  appealed  from  as  an  entirety.2  It 
is  evident  that  where  there  are  blended  interests  involved,  such 
as  lien-holders  generally  possess,  the  decree  must,  in  most  in- 
stances, be  treated  as  an  entirety,  for  if  it  be  not  so  treated  jus- 
tice can  seldom  be  done.  Where  there  is  an  ordinary  personal 
judgment  for  damages  against  two  or  more  parties  the  general 
rule  under  our  statute  probably  is  that  the  judgment  of  the  trial 
court  is  severable,  but  it  is  otherwise  where  there  are  blended 
or  commingled  interests  in  property  although  such  interests  may 
not,  in  strictness,  be  joint.  The  object  of  the  code  is  to  settle 
one  controversy  in  a  single  suit  and  not  to  permit  it  to  be  di- 
vided into  parts  and  litigated  in  parcels  or  divisions,  so  that  it 
is  often  important  to  reverse  an  entire  decree  in  order  that  upon 
a  second  hearing  the  whole  controversy  may  be  finally  adjudi- 
cated.3    The  policy  of  settling  an  entire  controversy  in  one  suit 

1  Ante,  §  574.                              •  3  Greenup    v.    Crooks,    50    Ind.  410; 

2  Ailing  v.  Wenzel,  133  111.  264,  24  X.  Minor  v.  Hill,  58  Ind.  176;  McCaffrey 
E.  Rep.  551,  S.  C.  8  Railway  &  Corp.  v.  Corrigan,  49  Ind.  175;  Harrison  v. 
L.J.  124;  Jones  V.  Matthews  (  Miss.),  4  Phenix,etc,  Ins.  Co.,  S3  Ind.575;  ./Etna, 
So  Rep.  547;  Bassett  v. Warner,  23  Wis.  etc.,  Co.  v.  Finch,  84  Ind.  301;    Ulrich 

Bond  v.Wabash,  etc.,  Co., 67  Iowa,  v.   Drischell,  SS  Ind.  354;    Gaylord  v. 

712;  Whipperman  v.  Dunn,  124  Ind.  349,  City  of  La  Fayette,  115  Ind.  423,433; 

357.     Citing  Bisel  v.  Tucker,  121   Ind.  Adair   v.  Morgentheim,  114  Ind.  303; 

249,  and  State  v. Templin,  122  Ind.  235.  Masters    v.    Templeton,   92    Ind.   447; 

In   Whipperman   v.  Dunn,  supra,  the  Woodworthv.  Zimmerman,  92  Ind.  349; 

court  said:     "It  is  perfectly  clear  that  Ballew    v.    Roller,    124    Ind.   557,    558; 

justice  can   not  be   done    between   the  Horn  v.   Indianapolis    Xational  Bank, 

parties  without  a   new  trial  as  to  the  125   Ind.  381,  396;     Stockwell  v.  State, 

whole  case.     In   such   cases   the  court  101  Ind.  1;   Bundy  v.  Cunningham,  107 

will  order  a  new  trial  of  all  the  issues  Ind.  360;   Otis  -'.  De  Boer,  116  Ind.  531, 

in  the  cause  to  the  end  that  justice  may  534.  535;   Lawrence  v.  Beecher,  1 16  Ind. 

be  done."  312,  314;  Manigault  v.  Holmes,  1  Bailey 


THE  JUDGMENT  ON   APPEAL. 


489 


is  so  clearly  right  and  its  effect  so  salutary,  that  it  overbears  all 
merely  formal  and  technical  rules.  The  appellate  tribunal  pos- 
sesses such  broad  and  comprehensive  power  to  mold  and  frame 
its  judgments  so  as  to  do  substantial  and  complete  justice  be- 
tween the  parties,  that  it  can  always  make  such  orders  respect- 
ing costs  and  their  apportionment  as  may  seem  just  and  equit- 
able. 

j;  576.  Trial  Court's  duty  to  obey  the  Mandate  of  the  Appellate 
Tribunal — The  mandate  of  the  appellate  tribunal  is  law  to  the 
trial  court  and  must  be  strictly  obeyed.1  Where  the  mandate 
directs  that  a  particular  judgment  be  entered,  that  a  specified 
ruling  be  made,  or  that  a  designated  course  be  pursued,  the 
inferior  tribunal  must  yield  obedience  to  the  directions  given  it. 
Thus,  where  a  new  trial  is  directed  it  must  be  granted  ;  no  other 
action  can  be  rightfully  taken  by  the  trial  court.2  So,  where  a 
case  is  remanded  upon  a  single  point  with  specific  directions 
the  trial  court  can  not  open  the  case  generally.3  No  modifica- 
tion of  the  judgment  or  decree  directed  by  the  appellate  tribunal 


(So.  Car.),  Eq.  278,  Benjamin  v.  E4- 
mira,  etc.,  Co.,  49  Barb.  441,  S.  C.  54 
N.  Y.  675;  Murrell  v.  Smith,  51  Ala. 
301 ;  McComb  v.  Spangler,  71  Cal.  41S; 
Hefner  v.  Northwestern,  etc.,  Co.,  123 
U.  S.  747. 

1  Burnett  v.  Curry,  42  Ind.  272;  Chap- 
in  v.  Board,  21  Ind.  12;  Cutsinger  v. 
Nebeker,  58  Ind.  401;  Center  Tp.  v. 
Board,  no  Ind.  579;  Cunningham  :•. 
Ashley,  13  Ark.  653;  Gunter  v.  Laffan, 
7  Cal.  58S;  Watson  v.  Avery,  3  Bush. 
635;  Caldwell  v.  Bruggerman,  8  Minn. 
286;  Henderson  ;. Winchester,  31  Miss. 
290;  Henshaw  v.  Robertson,  1  Bailey 
Ch.  (So.  Car.).  311;  Cralle  v.  Cralle,  S4 
Va.  19S,  6  S.  E.  Rep.  12. 

2  Argenti  v.  San  Francisco,  30  Cal. 
4;S;  McMillan  v.  Baker.  92  X.  C.  no; 
Myers  v.  McDonald, -68  Cal.  162. 

8  McConnell  v.  Wall.  67  Texas.  352; 
Conner  v.  Pope,  2^  Mo.  App.344;   Mc- 


Intyre  v.  Mclnivre,  24  Mo.  App.  166, 
Mix  v.  People,  122  111.  641.  See,  gen 
erally,  Washburn,  etc.,  Co.  v.  Chicago, 
etc.,  Co.,  1 19  111.  30,  Gage  v.  Bailey,  1 19 
111.  539;  Davis  v.  Curtis,  70  Iowa.  39S; 
Allen  v.  United  States,  22  Ct.  of  CI. 
300.  See,  generally,  Titusville  Iron 
Works  :•.  Keystone  Oil  Co.,  130  Pa. 
St.  211,  iS  Atl.  Rep.  739;  Tipping  v. 
Robbins,  71  Wis.  507,  37  N.  W.  Rep. 
427;  Cox  v.  Louisville,  etc.,  Co.  (Ky). 
11  S.  W.  Rep.  SoS;  Kneeland  v.  Amer- 
ican, etc.,  Co.,  140  U.  S.  592,  1 1  Sup.  Ct. 
Rep«42f>;  City  oi  New  Orleans  :•. Whit- 
ney, 13S  U.  S.  595,  n  Sup.  Ct.  Rep.  42S. 
In  the  case  of  McKinncv  :■.  State.  117 
Ind.  26,  it  was  held  that  where  there  is  a 
specific  order  in  the  mandate  directing  a 
reassessment  of  damages  the  parties 
can  not  amend  their  pleadings  after  the 
case  reaches  the  trial  court  under  the 
judgment  remanding  it. 


490  APPELLATE   PROCEDURE. 

can  be  made  by  the  trial  court  ;  no  provision  can  be  engrafted 
upon  it  nor  can  any  be  taken  from  it.1 

§  r)77.  Scope  of  the  .Mandate  of  Appellate  Tribunal — It  is  not  pos- 
sible to  lav  down  a  specific  rule  for  measuring  the  scope  and 
effect  of  a  mandate  from  an  appellate  tribunal,  since  its  scope  and 
effect  must  generally  be  determined  from  the  language  in  which 
it  is  expressed,  or  from  the  record  and  facts  in  the  particular 
instance.2  It  may  be  said,  in  a  general  way,  that  when  it  ex- 
presslv  directs  that  a  controversy  shall  be  terminated  by  a  spe- 
cific decree  or  judgment,  xits  effect  is  conclusive  and  covers  the 
entire  case,  but  where  it  does  not  either  expressly  or  impliedly 
so  direct  the  lower  court  as  to  prohibit  amendments  or  the  in- 
troduction of  new  parties,  that  court  may  permit  proper  amend- 
ments and  the  introduction  of  new  parties.3  Nor  does  the  man- 
dale  always  operate  upon  the  trial  court  so  as  to  exclude  the 
consideration  of  matters  occurring  subsequent  to  those  involved 
in  the  appeal.4  Where  a  new  trial  is  directed  and  no  specific 
instructions  are  given  or  rules  declared,  the  trial  court  is  not 
bound  to  adhere  to  the  evidence  adduced   on  the  former  trial,5 

1  Hughes'  Appeal, 90  Pa.  St. 60;  Sher-  v.  Belletta  (Cal.),  11  Pac.  Rep.  1097; 
man  v.  Windsor,  etc.,  Co.,  57  \'t.  57;  Smith  v.  Shaffer,  29  Neb.  656,  45  N .  W. 
Herstein  v.  Walker,  90  Ala.  477,  7  So.  Rep.  936;  McCurdy  v.  Middleton,  90 
Rep.  821;   Murrill  v.  Murrill,  90  N.  C.  Ala.  99,  7  So.  Rep.  655. 

120;  Kershman  v.  Swehla,  62  la.  654.  *  Davidson  v.  City  of  New  Orleans, 
Where  the  appellate  tribunal  orders  a  32  La.  Ann.  1245;  Sanders  v.  Peck,  30 
dismissal,  the  trial  court  can  not  do  111.  App.  238,  but  see  same  case  on  ap- 
anything  more  than  enter  the  appro-  peal,  131  111.  407;  Blandin  v.  Silsby,  62 
priate  judgment  dismissing  the  action.  Vt.69, 19  Atl.  Rep. 639;  Busby  v.  Mitch- 
Wall  v.  Dodge,  3  Utah,  168.  See.gen-  ell,  29  So.  Car.  447,  7  S.  E.  Rep.  618. 
erally,  Blacklock  v.  Small,  127  U.  S.  96.  See  Crib  v.  Morse.  79  Wis.  193.  48   N. 

2  It  is.  as  has  been  often  decided,  \V.  Rep.  489.  See,  also,  cases  first  cited 
proper    to    consider    the    judgments  of  in  the  following  note. 

courts  with  reference  to  the  record  and        5  McLennan  v.  Prentice, 79  Wis. 488, 

facts  before  them.     In   the  absence  of  48  N.W.  Rep.  487.    In  thecaseof  Moore 

the  record  and  the  facts  of  a  particular  :■.  American,  etc.,  Co.,  60  Hun.  582,  15 

case,   the   judgment  of  a  court  would  N.  Y.  Supp.  3S2,  the  general  doctrine 

sometimes     he     unintelligible,    at    all  was  carried  to  a  great  length.     Bonny 

events,  its  full  scope  and  true  meaning  v.  Bonny  (Ky.),g  S.  W.  Rep.  404;  Fort 

could  not  be  ascertained.  Madison,  etc.,    Co.   v.  Batavian   Bank, 

3  Perry  v.  Burton,  120  111.  599,  iS  X.  77  la.  393,  42  N.  W.  Rep.  331;  Adams 
E.  Rep.  653;  Green  v.  Springfield,  130  r.  Smith.  6  Dak.  94. 

111.  515,  22  N.  E.  Rep.  002;   Cartagnino 


THE  JUDGMENT  ON   APPEAL.  I'.il 

but  where  specific  instructions  are  given  or  rules  declared,  it  is, 
of  course,  the  imperative  duty  of  the  trial  court  to  rigidly  obey 
them,  for  what  the  appellate  tribunal  adjudges  it  is  not  at  liberty 
to  disregard  directly  or  indirectly.1  Where  the  reversal  opens 
the  whole  case,  the  only  effect  of  the  judgment  on  appeal  is  to 
bind  the  trial  court  to  follow  the  law  as  declared  by  the  higher 
court.2  It  does  not  always  follow  that  because  specific  instruc- 
tions are  embodied  in  the  mandate,  no  steps  can  be  taken  by 
the  trial  court,  for,  while  it  is  unquestionably  true  that  no  steps 
can  be  taken  that  directly  or  indirectly  contravene  the  express 
or  implied  provisions  of  the  mandate,  there,  nevertheless,  may 
be  cases  where  steps  may  be  taken  in  respect  to  matters  touched 
on  by  the  mandate  of  the  appellate  tribunal.3 

§  578.  The  Law  of  the  Case — It  is  a  firmly  settled  principle 
that  the  decisions  of  the  appellate  tribunal  constitute  the  law 
of  the  case  upon  all  the  points  in  judgment,  no  matter  at  what 
stage  of  the  proceedings  they  arise,  or  in  what  mode  they  are 
presented.  This  rule  is  not  one  springing  from  the  doctrine  of 
stare  decisis,  but  it  is  one  founded  upon  the  same  principle  on 
which  rests  the  doctrine  of  res  ad  judicata.  Questions  before 
the  court  for  decision,  and  by  the  court  decided  as  essential 
to  a  final  judgment,  are  conclusively  and  finally  adjudicated. 
The  law  as  declared  can  not  be  changed  upon  a  second  or  sub- 
sequent appeal.  This  general  doctrine  is  affirmed  by  many 
cases,  and,  so  far  as  we  can  discover,  denied  by  none.4     It  is 

1  Scroggs  v.  Stevenson  (N.  C),  12  Kress  v.  State.  65  Ind.  106;  Braden  v. 
S.  E.  Rep.  1031.  Graves,  85  Ind.  92;     Test    :  .  Larsh,  76 

2  Needless  v.  Burk,  9S  Mo.  474,  11  S.  Ind.  452;  Hawley  v.  Smith.  45  Ind.  1S3; 
W.  Rep.  1008;  White  v.  Butcher,  97  Union,  etc.,  Tp.  v.  First  National  Bank, 
N.  C.  7,  2  S.  E.  Rep.  59;  Ford  v.  Ford,  102  Ind.  464;  City  of  Logansport  v. 
72  Wis.  621,  40  N.  W.  Rep.  502.  See  Humphrey,  106  Ind.  146;  Pittsburgh, 
Mason  v.  Burke,  120  Ind.  404,  22  X.  E.  etc.,  Co.  v.  Ilixon,  no  Ind.  225.  1  fibbits 
Rep.  119;  O'Connell  v.  O'Learv,  151  v.  Jack,  97  Ind.  570;  Forgerson  v. 
Mass.  S3,  2^  N.  E.  Rep.  S26.  Smith,  104  Ind.  246;   Board  v.  Pritchett, 

'McCoy  v.  McCoy,  33  W.  Va.  60,  \;Ind.fiS;  Richmond  Street  Ry.  Co.  v. 

10S.  E.Rep.  19.  See, generally,  O'Brien  Reed,  83  Ind.  9;  Continental   Lite  Ins. 

v.  Gaslin,  24  Neb.  559,  39  N.  W.  Rep.  Co.  r.   Houser,    in    End.   266;   Nickless 

449;  District  of  Columbia  v.  McBlair,  v.  Pearson,  126  Ind.  477;   Eversdon  v. 

T24  U.  S.  320,  S  Sup.  Ct.  547.  Mayhew,  85  Cal.  1.  21    Pac.  Rep.  j.31; 

4  Dodge     v.    Gaylord,    $3    Ind.    365;  Thompson   v.  Hawley,  16  Oregon.  251, 


492 


APPELLATE   PROCEDURE. 


plainly  evident  that  the  rule  is  a  sound  and  salutary  one,  since, 
without  such  a  rule,  litigation  might  be  endless  and  a  contro- 
versy  remain  unsettled.  But  this  is  not  the  only  reason  sup- 
porting the  rule,  for  it  is  supported  by  the  principle  that  the 
judgment  of  the  court  upon  the  questions  before  it  is  final  and 
can  not  be  vacated  after  the  close  of  the  term.  It  is,  however, 
to  be  borne  in  mind  that  the  rule  does  not  go  to  the  extent  of 
foreclosing  a  review  of  all  the  questions  discussed,  for  it  does 
not,  bv  any  means,  go  to  that  length.  It  is  only  such  questions 
as  were  before  the  court  for  decision  and  such  as  were  expressly 
or  impliedly  decided,  that  are  conclusively  adjudicated.  The 
reasoning  or  illustrations  of  the  court  do  not  constitute  decis- 
ions and  hence  the  reasoning  and  the  illustrations,  although 
they  may  be  important  as  aids  in  determining  what  was  actu- 
ally decided,  do  not  constitute  the  binding  adjudication.1 

§  ")79.    Form  and  Effect  of  a  Judgment  of  Affirmance — Where  no 
specific  directions  are  deemed  necessary  and  the  conclusion  of 


19  Pac.  Rep.  S4;  Chicago,  etc.,  Co.  v. 
Hull,  24  Neb.  740.  40  N.  W.  Rep.  280; 
Alexandria,  etc.,  v.  McVeigh,  84  Va.  41, 
3  S.  E.  Rep.SS.s;  Mc Williams  v.  Walt- 
hall. 77  Ga.  7:  Lee  v.  Stahl,  13  Col.  174, 
22  Pac.  Rep.  436;  Steele  V.  Thompson, 
38  Mo.  A  pp.  312;  Green  v.  Springfield, 
130  111.  515,  22  N.  E.  Rep. 602;  Roberts 
7  .  Cooper,  20  How.  (U.  S.)  467;  Sizer 
-  Main.  16  How.  (U.S.)  98;  Cumber- 
land Coal,  etc.,  Co.  f.  Sherman,  20  Mil. 
117;  Du  Pont  v.  Davis,  35  Wis.  631; 
Booth  v.  Commonwealth,  7  Metcf. 
I  Mass.)  285.  In  Hibbits  v. Jack, sufra^ 
it  was  said:  "  What  was  decided  by  a 
case  afterwards  overruled  continues  to 
be  the  law  of  the  case  as  between  the 
parties  and  those  claiming  under  them. 
Hardigree  v.  Mitchum,  51  Ala.  151; 
Well's  Res  Adjudicata  and  Stare  De- 
cisis,  %  628." 

1  In  the  case  of  Union  School  Tp.  v. 
First  National  Bank,  102  Ind.  404,  472, 
the  court  said:  "In  our  opinion  a  de- 
cision rendered  on  appeal  does  not  con- 


clusively determine  merely  incidental 
or  collateral  questions,  but  determines 
only  such  questions  as  are  presented 
for  decision  and  are  decided  as  essential 
to  a  just  disposition  of  the  pending  ap- 
peal." The  Supreme  Court  of  Cali- 
fornia, in  speaking  of  the  law  of  the 
case,  said:  "It  has  never,  that  we 
are  aware,  been  held  to  apply  to  ex- 
pressions in  an  opinion  which  are 
merely  obiter,  and  we  venture  to  say 
that  beyond  something  of  that  sort 
there  is  nothing  in  the  former  opinion 
of  this  court  affecting  the  questions 
presented  on  this  appeal."  Wixson  v. 
Devine,  So  Cal.  385,  3SS.  A  doctrine 
similar  to  that  stated  in  the  text  is  de- 
clared in  other  cases.  Hughes  v.  De- 
troit, etc.,  Co.,  7S  Mich.  399,  44  \.  W. 
Rep.  396;  Clark  v.  Hershey,  52  Ark. 
473,  12  S.  W.  Rep.  1077;  Norton  v. 
Moshier  (111.),  2S  N.  E.  Rep.  463;  Lu- 
cas v.  Board,  44  Ind.  524.  and  authori- 
ties cited. 


THE  Jl    DGMENT  ON    APPEAL.  I'.t.', 

the  appellate  tribunal  is  that  the  judgment  of  the  lower  court 
should  be  affirmed,  a  simple  declaration  of  affirmance  is  all  that  is 
essential,  as  the  law  annexes  the  necessary  and  appropriate  inci- 
dents. The  appellate  tribunal,  in  rendering  a  judgment  which 
simply  affirms  that  of  the  court  of  original  jurisdiction,  does  not 
render  a  new  judgment  upon  the  demand  acted  upon  by  the 
former  court,  it  simply  confirms  the  judgment  of  that  tribunal.1 
Where  there  is  a  simple  affirmance,  the  judgment  remains  in 
force  as  of  the  date  of  its  entry  in  the  records  of  the  trial  court. 
Even  where  a  supersedeas  is  obtained,  the  appeal  does  not,  as 
is  well  settled,  disturb  the  judgment  below  further  than  to  sus- 
pend its  enforcement.  A  judgment  affirming  that  rendered  by 
the  trial  court  is  sometimes  said  to  "  effect  a  merger,"  but  this 
statement  requires  qualification,  for  it  is  not,  in  strictness,  true 
that  the  judgment  of  the  trial  court  "is  drowned  in  that  of 
the  superior  court."  The  trial  court  judgment  remains  un- 
disturbed, saving  only  that  it  is  conclusively  confirmed  by  the 
judgment  on  appeal.  This  confirmation  operates  to  a  limited 
extent  as  a  merger,  inasmuch  as  it  concludes  the  trial  court  and 
the  parties,  and  absolutely  precludes  them  from  modifying  or 
abrogating  the  judgment  affirmed.  The  authority  of  the  trial 
court  as  to  all  matters  involved  in  the  appeal  and  adjudicated 
by  the  judgment  there  rendered  is  at  an  end.2  Its  authority,  in- 
deed, ends  when  the  case  is  removed  to  the  higher  tribunal  by 
the  appeal,  and  revives  only  when,  if  ever,  it  returns  under  an 
order  remanding  the  case.3 

§  580.    Judgment  of  Reversal — A  judgment  reversing  the  judg- 
ment or  decree  of  the  trial  court,  expressed  in  general  terms  and 

1  Eno  v.  Crooke,  6   How.  Pr.    Rep.  Abrams  v.  Lee.  14  111.  167;   Chickering 

462;   Halsey  v.  Flint,  15  Abb.  Pr.  Rep.  v.  Failes,  29  111.  294;   Lyon  v.  Merritt,  6 

367.     An  appellate  tribunal  may  add  to  Paige,  473.     The  conclusiveness  of  the 

a  judgment  of  affirmance  such  explana-  judgment  is  not  affected  by  the  fact  that 

tions  as  may  he  necessary  to  make  the  the   cause    was    submitted,    on   appeal, 

judgment  below  fully  understood.  Mayo  upon    a  defective  record.     Gregory  v. 

-•.  Purcell.  3  Munf.  (Va.)  243.  Slaughter,  19  Ind.  342;    Devoss  v.  Jay, 

1  Herstein   :\  \Yalker.  90  Ala.  477.  7  14    Ind.    400;    State    v,    Daugherty,    59 

So.  Rep.  821;  Dobson  v.  Simonton,  100  Mo.  104. 

N.  C.  56;   Werborn  v.  Pinney,  7''  Ala.  3  See.  "  Effect  of  the  Appeal."  Chap- 

201.     /;/    re  Cassidey,  95   N.   C.  225;  ter  XXVII. 


194 


APPELLATE   PROCEDURE. 


without  specific  directions  or  instructions,  operates  to  com- 
pletely annul  the  judgment  or  decree  of  the  lower  court  and  to 
restore  the  parties  to  the  position  they  occupied  when  the  orig- 
inal decree  or  judgment  was  rendered.1  Its  effect  is  substan- 
tially the  same  as  that  of  a  judgment  awarding  a  new  trial,  for, 
in  general,  it  opens  up  the  whole  case.2  We  have  stated  the 
general  rule  in  guarded  terms,  for  we  suppose  that  it  is  not  cor- 
rect to  affirm  that  a  judgment  of  reversal  always  opens  up  the 
judgment  below,  as  is  sometimes  said,  for  we  suppose  it  incon- 
trovertibly  true  that  the  judgment  on  appeal  does  not  always  or 
necessarily  open  up  the  entire  case.  It  surely  would  not  do  so 
in  a  case  where  the  error  is  in  refusing  to  modify  a  decree  or 
judgment,  or  where  there  is  some  error  affecting  the  judgment 
or  decree  only  in  part.  The  judgment  of  reversal  does,  how- 
ever, usually  reach  back  to  the  first  error,  and  from  that  point 
generally  opens  up  the  whole  case. 

§  581.  Costs  on  Reversal — Apportionment  of — As  a  general  rule 
the  reversal   carries   the  costs   from   the    first   error.3     But  the 

1  Mulin  :■.  Atherton,  6i  N.  II.  20;  ment  reversed  except  as  a  muniment 
Ervin  v.  Collier.  3  Mont.  189;  Lipp  v.  of  title  in  favor  of  bona  fide  purchasers. 
Hunt,  30  Neb.  469,  45  N.  W.  Rep.  6S5;  Post,  §§  582,  583.  After  reversal  the 
Rose  v.  Garrett,  91  Mo.  65;  Phelan  v.  judgment  can  not  be  effectively  pleaded 
San  Francisco,  9  Cal.  15;  Lewis  v.  St.  in  bar  nor  effectively  employed  as  an 
Louis,  etc.,  Co.,  59  Mo.  495;  Crispen  estoppel.  Wood  v.  Jackson,  S  Wend. 
v.  Hannovan,  86  Mo.  160;  Musser  v.  9,  22  Am.  Dec.  603;  Taylor  v.  Smith, 
Ilarwood,  23  Mo.  App.  495.  4  Ga.   133;  Oregonian  Ry.  Co.  v.  Ore- 

2  State  v.  Templin,  122  Ind.  235,  23S;  gon,  etc.,  Co.,  27  Fed.  Rep.  277;  Smith 
Edwards  v.  Edwards,  22  111.  121;   Hid-  v.  Frankfield,  77  N.  Y.  414. 

den  v.  Jordan,  28  Cal.  301.     In  the  case  3  Doyle  -'.  Kiser,  8  Ind.  396;  Conner 

of  Cox  r\  Pruitt.  25  Ind.  90,  it  was  said:  v.  Winton,   10  Ind.  25;   Excelsior,  etc., 

"  The  reversal  by  this  court,  ex  vi  ter-  Co.  v.   Brown,   47   Ind.  19;   Winton  v. 

mini,  vacates  the  judgment  of  the  court  Conner,    24   Ind.   107;     Eigenmann    v. 

below  without  any  action  of  that  court.  Kerstein,    72    Ind.   Si;     Shoemaker    v. 

On  the  filing  of  the  certified  opinion  of  Smith,    100    Ind.  40;  Thomas  v.  Sim- 

this   court   in  the    clerk's  office  of  the  mons,  103  Ind.  53S.     Fees  of  stenogra- 

circuit   court,    it  was    the  duty    of  that  pher  are   part  of  the  costs.      Wright   V. 

court  to  proceed  with  thecasefrom  the  Wilson,  9S  Ind.  112.     Where  appellee 

point    reached  by  the  judgment  of  re-  enters   satisfaction  of  judgment  appel- 

I      That    court    having    done    its  lant  is  entitled  to  recover  the  cost  of  the 

duty,  although   in  an   informal  manner,  transcript.     Monnett  v.  Hemphill,  no 

committed  no  error  in  taking  jurisdic-  Ind.  299.     The  cost  of  the  transcript  is 

Hon  of  tlie  cause."     The  reversal  com-  part  of  the  costs  of  the  appeal.     R.  S. 

pletelv  destroys  the  effect  of  the  judg-  1SS1,  §  665. 


THE  JUDGMENT  ON    APPEAL.  495 

plenary  power  of  the  court  to  so  mold  its  judgments  as  to  do 
equity  enables  it  to  apportion  the  costs  equitably,  and  it  d 
not  invariably  adjudge  costs  according  to  the  general  rule 
stated.  In  the  absence,  however,  of  elements  constituting  the 
particular  case  an  exception  to  the  general  rule,  the  costs  will 
be  apportioned  as  it  requires.  Where  no  specific  directions  are 
given  the  uniform  practice  is  to  tax  the  costs  under  the  rule. 

S  582.  Effect  of  Judgment  of  Reversal  upon  the  rights  of  Bona  tide 
Purchasers — The  provisions  of  our  code  protect  parties  who,  in 
good  faith,  purchase  land  sold  under  a  judgment  which  is  sub- 
sequently reversed.1  It  excludes  parties  and  attorneys  so  that 
they  can  not  successfully  assert  rights  as  good  faith  purchas- 
ers.2 It  is  clear  that  the  provisions  of  the  statute  referred  to  in 
the  note  must  be  considered  in  connection  with  the  provisions 
respecting  the  effect  of  a  supersedeas,  for  we  think  that  where 
a  supersedeas  is  rightfully  issued  and  duly  served,  a  sale  upon 
the  judgment  will  not  convey  title.  We  incline  to  the  opinion 
that  where  a  supersedeas  is  issued  there  can  be  no  good  faith 
purchaser,  although  a  sale  may  be  made  in  disobedience  of  its 


1  R.  S.  1S81,  §  169.     The  broad  terms  S.C.Si  Am.  Dec.  302;  Stinson  v.  Ross, 
of  the  statute  can  not,  as  it  seems  to  us,  51    Me.  556,    S.   C.  Si    Am.   Dec. 

in  view  of  other  provisions  of  the  stat-  Little  V.  Bunce,  7  N.  H.  4S5,  S.  C.  2S 

ute  and  of  the  established  rules  of  law,  Am.  Dec.  363;  Gray  v.  Brignardello,  1 

be  given  literal  effect,  for  there  must  be  Wall.  627;   Shultz  v.   Sanders,  3S  N.  J. 

some  cases  where  the  reversal  destroys  Eq.  154;    Jesup  v.  City  Bank,   15  Wis. 

title.     We  suppose  it  clear  that  where  604,82  Am.  Dec.  703;     Stout  v.  Gully, 

the  judgment  of  the  trial  court  is  void  13  Col.  604,  22   Pac.  Rep.  954;    Macklin 

there   can   be   no  bona  fide  purchaser.  i\  Allenberg,  100  Mo.  337,  13  S.W.  Rep. 

Underwood   v.  Pack,   23   W.  Va.  704.  350;    Cheever   v.    Minton     (Col.),    21 

It  is,  however,  probably  true  that  the  Pac.    Rep.    710.     An    assignee    of    the 

statute   can    he   given  effect  by  some-  judgment  who  purchases  is  held  to  be  a 

what  restricting  the  terms  employed.  party   and    liable   to    Ik-   compelled    to 

2  The  statute  is  merely  declarative  of  make  restitution.     Mcjillton  v.    Dove, 
the  common   law;   its   policy  was  to  es-  13  111.486,  54  Am.  Dee.  ^49. 

tablish    confidence    in     judicial    sales,  right-  ami  liabilities  of  assignee,  Ritch 

Twogood    V.    Franklin.   27    Iowa.    239;  v.  Eichelberger,  13   Fla.  169;    Reynolds 

Hubbell  V.  Broadwell,8  Ohio,  120;  Gott  :•.     Harris.     14    Cal.     067;     Weber     :•. 

v.  Powell, .(l  Mo.  410;  Frakes v. Brown,  Tschetter  (Dak.),  46  X.  W.  Rep.  201; 

2  Blackf.  295;  Dorsey  v. Thompson, 37  Northam  v.  Gordon,  23  Cal.  255;  Rey- 

Md.  25;  Fitzgibbon  v.  Lake,  29  111.  165,  nolds  :•.  llosmer.  45  Cal. 616,  630. 


496  APPELLATE  PROCEDURE. 

provisions.1     The  title  of  one  who  is  not  a  bona  fide  purchaser 
is  defeated  by  a  reversal.2 

§  583.  Restitution — As  the  reversal  of  a  judgment  completely 
vacates  and  annuls  it,3  justice  requires  that  one  who  is  not  pro- 
tected by  superior  equities  should  restore  all  of  value  that  he 
has  received  or  acquired  by  virtue  of  the  invalid  judgment. 
The  reversal,  no  matter  whether  made  upon  confession  of  er- 
rors or  after  a  contest,  takes  from  the  reversed  judgment  all 
effect,  and  the  parties  to  the  judgment  can  take  no  benefit  from 
it.4  It  necessarily  results  from  these  settled  and  sound  princi- 
ples that  a  party  who  acquires  title  under  a  judgment  annulled 
by  a  reversal  ought  not  to  be  permitted  to  hold  it  unless  he  is  a 
bona  fide  purchaser  in  all  that  the  term  implies.  The  common 
law  gave  effect  to  this  just  and  salutary  principle  by  compelling 
a  party,  not  a  bona  fide  purchaser,  to  make  restitution  of  prop- 
erty received  by  him  under  the  invalid  or  ineffective  judgment.5 
The  rule  is  that  where  the  party  has  the  property  in  specie  he 
may  be  compelled  to  restore  the  property  and  the  claimant  can 
not  be  put  off  with   the  payment  of  damages,  but  where  the 

1  Parker  v.  Courtnay,  28  Neb.  605,  5  Martin  v.  Woodruff,  2  Ind.  237.  In 
44  N.  W.  Rep.  863.  the  case  cited  it  was  said:     "The  de- 

2  Mullin  v.  Atherton,  61  N.  H.  20.  fendant  is  entitled  to  no  benefit  from  a 

3  Ante,  §580,  and  authorities  collected  judgment  which  ought  not  to  have  been 
in  note.  Ragan  v.  Cuylcr,  24  Ga.  397,  recovered."  This  is  a  terse  expression 
400;  French  v.  Edwards,  4  Saw.  C.  C.  of  the  principle  upon  which  rests  the 
I-1;.  doctrine  of  restitution.    Doe  v.  Crocker, 

4  In  Maghee  v.  Collins,  27  Ind.  83,  the  '  2  Ind.  575;  Splahn  v.  Gillespie,  48  [nd. 
court  said:  "After  a  judgment  has  397,  40S;  Gott  v.  Powell,  41  Mo.  416; 
been  reversed  it  can  have  no  force  for  Bickett  v.  Garner,  31  Ohio  St.  28; 
any  purpose.  It  no  longer  binds  either  Quan  Wo  Chung  Co.  v.  Laumeister,  83 
of  the  parties  to  it.  It  will  not  bear  Cal.  384,  S.  C.  17  Am.  St.  Rep.  261; 
another  suit  for  the  same  cause  of  ac-  Lytle  v.  Lytic,  94  N.  C.  522;  Perry  v. 
tion  against  the  party  who  was  a  de-  Tupper,  70  N.  C.  53S;  Watson  v.  Trus- 
fendant  to  it,  and  surely  no  principle  of  tees,  2jones,2ii;  Little  v.  Bunce,  7  N. 
justice  requires  that  it  should  be  deemed  H.  485,  2S  Am.  Dec.  363;  Murray  v. 
a  bar  in  favor  of  a  stranger  jointly  Berdell,  9S  N.  Y.  480;  Hall  v.  Wells.  54 
liable  with  him  originally.  If  there  be  Miss.  289;  Shaw  v.  Fleming,  5  Houst. 
a  rule  of  law  to  that  effect  it  is  wholly  155;  Runyon  v.  Hale,  10  Ark.  476; 
technical  and  arbitrary,  and  without  Harlan  v.  Scott,  2  Scam.  65;  Kennedy 
any   support  in  sound  reason  or  good  v.  Hanner,  19  Cal.  374. 

morals." 


THE  JUDGMENT  ON    APPEAL. 

property  can  not  be  restored  the  claimant  is,  of  course,  entitled 
to  compensation.1 

§  584.  Restitution — Practice — In  some  of  the  States  the  order 
of  restitution  is  made  directly  by  the  appellate  tribunal,  and 
it  is  the  judgment  of  that  tribunal  that  effects  a  restoration  of 
the  specific  property.2  Our  statute,  in  accordance  with  its  gen- 
eral purpose  to  establish  a  system  requiring  cases  to  be  re- 
manded to  the  trial  court  for  the  entry  of  the  ultimate  judg- 
ment," provides  that  the  party  entitled  to  restitution  "  may 
notify  the  purchaser  or  his  tenant,  or  other  person  in  possession, 
that  at  the  next  term  he  will  move  the  court  which  rendered 
the  judgment  to  restore  him  to  the  possession  of  the  premises."4 
This  provision  requires  the  judgment  of  restitution  to  be  pro- 
nounced by  the  court  of  original  jurisdiction,  but,  upon  the 
principle  stated  in  preceding  paragraphs  of  this  chapter,  the 
appellate  tribunal  has  power  to  direct  the  court  below  to  enter 
a  judgment  of  restitution  upon  the  proper  steps  being  taken  by 
the  party  entitled  to  a  restoration  of  the  specific  property.  The 
remedy  provided  by  the  statute  is  a  summary  one.6  The  statute 
is  remedial  in  its  nature  and  salutary  in  its  effect,  and  should 
be  liberally  construed.  One  of  the  leading  objects  which  the 
statute  is  designed  to  accomplish  is  that  of  ending  litigation  by 
directing  a  restoration  of  the  property  without  compelling  the 

1  The  claimant  is  entitled  to  the  prop-  Coster  v.  Peters, supra.  See,  generally, 
erty  itself,  not  simply  to  the  value  of  People  v.  Livingston,  80  N.Y.  66;  Brit- 
tle property.  Gott  v.  Powell,  41  Mo.  ton  v.  Phillips,  24  How.  Pr.  Rep.  in; 
416:   Bickett  v.  Garner,  31  Ohio  St.  2S.  Lott  v,  Swezey,  29  Barb.  87;  Holloway 

2  Stockman  v.  Riverside.etc,  Co.,  64  v.  Stephens,  1  Hun.  30S;  Scholey  v. 
Cal.  57;  Ex  parte  Morris,  9  Wall.  605.  Halsey.  72  N.  Y.  37S. 

See,  also,  Pico  v.  Cuvas,  48  Cal.  639,  8  Ante,  §  564.  See,  also,  Williams  v. 
•643;  Kennedy  -'.  Hamer,  19  Cal.  374,  Port,  9  End.  551;  Williams  v.  Jones,  14 
386;  Reynolds  v.  Harris,  14  Cal.  667,  Ind.  363;  Stockton  r.  Coleman,  42  Ind. 
68S.  It  is  held  that  the  statute  does  not  2S1. 
make  it  imperative  upon  the  court  to  *  R.  S.  1SS1,  §  672. 
•order  a  restitution.  Coster  v.  Peters,  5  The  remedy  is  held,  and  we  think 
7  Rob.  (N.  Y.),  3S6,  S.  C,  4  Abb.  Pr.  justly,  to  be  a  cumulative  one.  Lott  ;■. 
(N.  S.)  53.  It  is,  however,  held  that  it  Swezey.  29  Barb.  87;  Kidd  V.  Curry, 
may  be  directed,  as  a  matter  of  course.  29  Hun.  215;  Scholey  V.  Halsey.  72  X. 
Estus  v.  Baldwin,  9  How.  Pr.  Rep.  So;  Y.  37S.  Our  code  gives  express  sane- 
People  V:  Johnson,  38  N.Y.  63, 66.  The  tion  to  this  general  doctrine.  R.  S. 
.right  may  be  lost  by  inexcusable  delay.  1SS1 ,  $  673. 

32 


498 


APPELLATE    PROCEDURE. 


claimant  to  resort  to  a  formal  action,  and,  as  the  object  is  one 
favored  by  high  considerations  of  public  policy  and  supported 
by  sound  principle,  the  appellate  tribunals  ought  to  freely  and 
liberally  apply  its  provisions  in  cases  where  justice  demands 
restitution.  The  provisions  of  the  statute  concerning  the  hear- 
ing and  procedure  seem  to  contemplate  the  formation  of  an 
issue,  for  the  statute  declares  that :  "  Upon  proof  that  the  notice 
has  been  served  ten  days  the  court  may  proceed  to  hear  and 
determine  the  issues  made  by  the  parties,"  x  but,  broad  as  these 
words  are,  it  is,  nevertheless,  evident  that,  when  taken  in  con- 
nection with  other  provisions  of  the  code  and  considered  with 
reference  to  the  purpose  of  its  framers  and  the  object  they  in- 
tended to  accomplish,  the  issue  must,  of  necesssity,  be  a  nar- 
row and  limited  one.  It  is  hardly  possible  that  the  code  con- 
templates the  opening  of  the  entire  case.  We  can  see  no  rea- 
son to  doubt  that  the  only  issue  that  can  properly  be  formed 
is,  whether  the  claimant  is  entitled  to  a  judgment  restoring  the 
property  taken  from  him  under  the  judgment  vacated  by  the 
judgment  on  appeal.  This  must  be  so  for  the  judgment  on  ap- 
peal is  conclusive  as  to  the  ineffectiveness  of  that  rendered  by 
the  trial  court,  so  that  the  only  question  open  to  controversy  is 
the  right  to  restitution. 

§  585.  Finality  of  the  Judgment  on  Appeal— In  affirming,  as  we 
have  done,  that  the  judgment  on  appeal  concludes  both  the 
trial  court  and  the  appellate  tribunal,  we  have  impliedly,  at 
least,  shown  that  in  important  particulars  the  judgment  on  ap- 
peal is  final  in  all  that  the  term  implies.  But  it  is  final  in  other 
respects  than  those  indicated.  It  is  final  in  the  sense  that  after 
the  close  of  the  term  at  which  it  was  rendered  the  court  that 
rendered  it  can  not  vacate  it,  but  this  statement  is  to  be  deemed 
limited  by  the  doctrine  stated  in  the  paragraph  which  follows.2 

1  R.  S.  iSSi,  §  673.  v.  Stewart,  3  How.  (U.  S.)  413;  Martin 

2  Center  Township  v.  Board,  no  Ind.  v.  Hunter,  1  Wheat.  304;  Skillern  v. 
579;  Hungerford  v .  Cushing,  S  Wis.  May,  6  Cranch.  267.  It  is  upon  the 
324;  State  v .  Wapucca  Bank,  20  Wis.  general  principle  stated  in  the  text  that 
640.  In  the  case  last  cited  the  court  re-  it  was  held  that  after  the  case  reaches 
ferred  to  the  following  cases  as  sustain-  the  trial  court  under  the  order  remand- 
ing its  views.     Washington  Bridge  Co.  ing  it  the  appellate  court  can  not  con- 


THE  JUDGMENT  ON   APPEAL. 


Where  there  is  a  simple  judgment  of  reversal,  that  is,  one  with- 
out specific  instructions,  the  decision  is  not  final  in  such  a  sense 
as  to  interdict  further  proceedings,1  but  even  in  such  a  case  the 
judgment  is  final  as  to  all  questions  presented  for  decision  and 
decided  as  essential  to  a  disposition  of  the  pending  appeal. 
Where  there  is  a  judgment  of  reversal  completely  putting  an 
end  to  the  controversy  by  specific  directions  or  instructions  it 
is,  as  a  general  rule,  to  be  regarded  as  final  in  the  strictest 
sense  of  the  term.2  We  have  stated  only  general  rules.  We 
do  not  mean  to  imply  that  the  appellate  tribunal  may  not  in 
cases  of  accident  or  fraud  relieve  a  party  who  presents  a  mer- 


trol  the  enforcement  of  the  judgment. 
Szorn  v.  Lamar,  71  Ga.  85;  Wallaces. 
Stutsman  County,  6  Dak.  1.  It  seems 
clear  that  this  must  be  the  correct  doc- 
trine, for  under  our  statute  the  opinion 
must  be  certified  to  the  trial  court,  but 
it  must  be  the  true  doctrine  under  any 
system,  otherwise  we  should  have  the 
strange  anomaly  of  one  case  in  two 
courts  at  the  same  time. 

1  Houston  v.  Moore,  3  Wheat.  .433, 
Smith  v.  Adams,  130  U.  S.  167.  In  the 
case  last  cited  it  was  said:  "A  judg- 
ment of  reversal  is  only  final  when  it 
also  enters  or  directs  the  entry  of  a 
judgment  which  disposes  of  the  case." 

2  In  speaking  of  such  a  judgment  the 
Supreme  Court  of  the  United  States 
>aid:  "That  judgment  is  final  for  the 
purposes  of  a  writ  of  error  to  this  court, 
which  terminates  the  litigation  between 
the  parties  on  the  merits  of  th<_  case,  so 
that  if  there  should  be  an  affirmance 
here,  the  court  below  would  have  noth- 
ing to  do  but  to  execute  the  judgment 
already  rendered.  Bostwick  t'.  Brinker- 
hoff,  106  U.  S.  3,  and  the  numerous 
cases  there  cited.  The  judgments  in 
these  cases  are  of  that  character.  The 
litigation  is  ended,  and  the  rights  of  the 
parties  on  the  merits  have  been  fully 
determined.  Nothing  remains  to  be 
done  but  to  require  the  inferior  court  to 
perform  the  ministerial  act   of  entering 


the  judgments  in  that  court  which  have 
been  ordered.  This  is  but  carrying  the 
judgment  of  the  Supreme  Court,  which 
has  been  rendered,  into  execution. 
Nothing  is  left  to  the  judicial  discretion 
of  the  court  below.  The  cases  relied 
on  in  support  of  the  motion  to  disi 
were  all  judgments  or  decrees  of  rever- 
sal with  leave  for  further  proceedings 
in  the  inferior  court."  See,  also,  Brown 
v.  Union  Bank,  4  How.(  U.S.)  465;  Gib 
bons  v.  Ogden,  6  Wheat.  44S,  and  note. 
Pepper  v.  Dunlap,  5  How.  (U.S.);!, 
Tracy  v.  Holcomb,  24  How.  (U.  S.)  426; 
Baker  v.  White,  92  U.  S.  176,  Davis  :  . 
Crouch,  94  U.  S.  514;  Atherton  v.  Fow- 
ler, 91  U.S.  143,  Williams  r.Bruiiy,  102 
U.  S.  248,  255,  Moore  V.  Robbin- 
Wall.  5SS.  It  is  true  that  the  decisions 
in  the  cases  cited  are  directed  to  a  phase 
of  the  subject  somewhat  different  from 
that  discussed  in  the  text,  but  they  as- 
serl  the  principle  there  stated,  inasmuch 
as  they  clearly  exhibit  the  difference  be- 
tween a  general  judgment  of  reversal 
and  a  judgment  of  reversal  accom- 
panied by  specific  instructions  or  di- 
rections which  effectually  put  an  end 
to  the  particular  suit  or  action.  Spe- 
cific directions  may  end  a  controversy 
as  effectually  as  an  unconditional  judg- 
ment of  affirmance.  Chouteau  :•.  Allen, 
74  Mo.  56;  Connor  v.  Pope,  2^  Mo. 
A.pp.  344- 


500  APPELLATE  PROCEDURE. 

itorious  cause,  who  has  been  free  from  fault,  prompt  and  dili- 
gent ;  on  the  contrary,  we  are  satisfied  that  the  powers  of  the 
court  are  of  such  high  and  comprehensive  character,  for  both 
the  elements  of  equity  and  of  law  are  blended  in  its  powers  and 
authority,  that  it  may  give  relief  in  the  proper  case.  But  cases 
in  which  such  relief  can  be  granted  are  extraordinary  ones  and 
very  seldom  arise. 

§  586.  Effect  of  a  Petition  for  Rehearing  upon  the  rule  stated  in  the 
preceding  paragraph — It  seems  quite  clear  that  where  a  petition 
for  rehearing  is  filed  within  the  time  limited,  the  case  remains 
in  the  appellate  tribunal  until  judgment  is  given  upon  the  peti- 
tion. As  long  as  the  petition  remains  undisposed  of  the  case 
remains  in  the  appellate  tribunal.  A  petition  filed  at  one  term 
necessarily  carries  the  case  over  to  the  term  at  which  a  ruling 
is  made  on  the  petition.  It  is  evident,  also,  that  a  party  entitled 
to  petition  for  a  rehearing  may  file  his  petition  within  the  time 
prescribed,  although  the  time  may  not  expire  until  after  a  new 
term  has  begun. 


Part  II. 

ERROR  IN  JUDICIAL  PROCEEDINGS. 


CHAPTER   I. 

THE    NATURE   OF  JUDICIAL    ERROR. 

$  587.    Error— Definition.  §  593.    A   wrong   ruling   not   probably 

558.  Erroneous  rulings,  prejudicial    is    not    available 

559.  Ruling   righl    when  made  does  error. 

not  constitute  error.  594.    Presumption  of  prejudice  from 

590.  The  ultimate  ruling  is  decisive.  an  erroneous  ruling. 

591.  Presumption  that  the  court  ad-         595.    No    error    where    complaining 

heres  to  a   declared   or  indi-  party   secures    his    rights   by 

cated  theory.  amendment. 

592.  That  is  not  error  which  the  rec-         596.    Pleadings  upon  which  error  is 

ord  does  not  show  to  be  error.  alleged  must  be  in  the  record. 

§587.  Error  —  Definition — It  is  sufficient  for  our  immediate 
purpose  to  define  the  term  "error"  in  a  rough  way,  and  this 
we  do  by  saying  that  it  means  a  wrong  ruling  or  decision.  A 
wrong-  decision  is  one  which  violates  some  fundamental  rule  or 
principle  of  law,  or  some  rule  of  pleading,  practice,  or  evi- 
dence. But  a  mistake,  although  it  may,  in  a  general  sense,  be 
erroneous,  is  not  always  such  an  error  as  will  be  available  on 
appeal.  It  is  always  essential  to  success  on  appeal  to  show  a 
wrong  ruling  or  decision,  but  a  wrong  ruling  does  not  invari- 
ably constitute  error.  Speaking  with  strict  accuracy,  an  "  er- 
ror "  is  such  a  wrong  ruling  as  probably  induced  a  wrong  judg- 
ment, but  the  term  is  not  ordinarily  used  in  this  strong  sense, 
for  other  words  are  generally  added  to  the  term  when  error 
sufficient  to  warrant  a  reversal  is  meant.  If  a  mistake  in  de- 
claring or  applying  a  rule  of  law  does  not  probably  conduce  to 
a  wrong  judgment,  there  is,  in  strictness,  no  error,  although  it 
is  not  uncommon  to  say  that  the  "  ruling  constitutes  error,"  or 
that  there  "  was  error  in  the  ruling,"  when  no  more  is  meant 
than  that  a  mistake  was  made  by  the  trial  court  but  not  one  re- 
quiring that   a  judgment  be   reversed  or   annulled.1     It   is.  in 

1  It  will  be   shown  at   another   place  that   there  are  two  general  classes   of 
errors,  available  and  unavailable. 

(503) 


504  ERROR   IN  JUDICIAL  PROCEEDINGS. 

general,  true,  that  a  mere  irregularity  does  not  constitute  error, 
but  an  irregularity  may  be  error  where  it  directly  or  influen- 
tially  conduces  to  an  erroneous  final  decision.  An  error  in  the 
true  and  strict  sense  is  such  an  irregularity  or  such  a  mistake 
in  declaring  or  applying  some  fundamental  rule,  or  some  estab- 
lished rule  of  pleading,  practice,  or  evidence,  as  conduces  to  a 
wrong  judgment,  or  so  operates  as  to  make  the  final  decision 
erroneous. 

§  588.  Erroneous  Rulings — Erroneous  rulings  (using  the  term 
"erroneous  rulings"  as  meaning  wrong  rulings,  which  prob- 
ably tend  to  produce  a  wrong  judgment  or  decree)  are  sufficient 
to  overthrow  a  judgment  or  decree  upon  a  direct  attack  well 
made,  but  they  are  not  available  in  a  purely  collateral  attack. 
A  judgment  may  be  radically  erroneous  and  not  void.  If  there 
is  a  court  and  jurisdiction  the  judgment  is  not  void,  and  if  not 
void,  no  collateral  attack  can  prevail  against  it.1  A  party  may 
appeal  from  a  void  judgment  but  he  is  not  bound  to  do  so,  for 
it  may  be  utterly  disregarded  ;  he  can  not,  however,  disregard 
a  judgment  which  is  simply  erroneous,  for,  until  set  aside  or 
reversed  by  a  judicial  order  or  decree,  it  is  effective.  It  is  er- 
roneous judgments  that  appellate  courts  have  to  deal  with  in 
the  vast  majority  of  cases  brought  to  their  bar.     A  judgment  is 

1  Ex  parte  Bigelow,    113    U.  S.  328;  but  it  may    be  attacked    in  the   lower 

Goodell  v.  Starr,  127  Ind.  19S;   Harrod  courts  for  matters  not  apparent  of  rec- 

V.  Dismore,  127  Ind.  33S;   McLaughlin  ord.     State  v.  Morrison,  103  Ind.  161 

V.   Etchison,    127    Ind.  474;     Boyer    v.  Indiana,  etc.,  Co.  v.  Allen,  113  Ind.  5S1 

Berrvman,  123  Ind.  451;  Cicero  Tp.  v.  Robertson    v.   Huffman,   92    Ind.   247 

Picken,  122   Ind.  260;    Essig  v.  Lower,  McAlpine    v.    Sweetser,    76    Ind.    7S 

120  Ind.  239,  and  cases  cited.     A  void  Weiss  v.  Guerineau,  109  Ind.43S;  Wil- 

judgment,  as  a  general  rule,  carries  its  bite  v.  Wilhite,  124  Ind.  226.     In  Wolfe 

own  condemnation.     Kingman  v.  Paul-  v.  Davis,  74  N.  C.  597,  599,  it  was  said: 

son,  126  Ind.  507;  Bailey  v.  Martin,  1 19  "An  erroneous  judgment   is  one   ren- 

Ind.  103;  Earle  v.  Earle,9i  Ind.  27.    It  dered  according  to  the  course  and  prac- 

is  really  an  absolute  nullity;   that  is  no  tice  of  the  courts,  but  contrary  to  law. 

judgment  save  in  form,  and  not  always  as  where   it  is   for  one   party,  when  it 

in  that,  at  all  events  it  is  utterly  desti-  ought  to  be  for  the  other,  or  for  too  lit- 

tute  of  force.   Smith  v.  Hess,  91  Ind.  424.  tie  or  too  much."     See,  also,  Koonce  v. 

A  voidable  judgment  is  one  which  may  Butler,   S4   N.    C.   221.     "Erroneous" 

be  avoided  or  annulled.     Smith  v.  Hess,  means,  as  usually  employed,  deviating 

supra.     On     appeal    the     record     must  from    the   law.     Thompson  v.  Doty,  72 

supply    the  means  of  overthrowing  it,  Ind.  336,  33S. 


THE  NATURE  OF  JI   DICIAL   ERROR. 

erroneous  wherever  a  wrong  ruling  denies  a  party  a  substantial 
legal  right,  although  the  ruling  may  be  made  early  in  the  prog- 
ress of  the  case.  The  wrong  may,  of  course,  be  subsequently 
rectified,1  but  if  it  is  not  it  may  be  sullicient  cause  for  reversal, 
no  matter  at  how  early  a  stage  of  the  case  it  was  committed. 

§  589.   Ruling  Ri^ht  when   Made  does   not   constitute   Error— 

Whether  a  ruling  does  or  does  not  constitute  error  is  to  be  de- 
termined, as  a  general  rule,  by  the  condition  existing  at  the 
time  it  was  made.  If  at  the  time  the  ruling  was  made  it  was 
not  erroneous,  it  can  not  be  made  erroneous  by  the  subsequent 
acts  of  the  parties.  Thus,  the  withdrawal  of  the  general  denial 
in  an  answer  after  a  ruling  upon  demurrer  can  not  make  the  rul- 
ing wrong,  although  if  the  general  denial  had  been  withdrawn 
before  the  ruling  was  made,  the  ruling  would  have  been  errone- 
ous in  the  strictest  sense.2  The  court  may  change  the  con- 
dition of  affairs  and  impress  error  upon  a  ruling,  but  a  change 
wrought  by  the  subsequent  acts  of  the  parties  can  not  have  that 
effect.  If  the  party  desires  to  secure  an  available  ruling,  that 
is  a  ruling  upon  which  error  may  be  properly  alleged,  in  cases 
such  as  those  cited  in  the  note,  he  must,  after  withdrawing  the 
denial,  refile  the  affirmative  paragraph  and  secure  a  ruling  upon 
it  as  refiled.     If  that  ruling  is  adverse,  then  error  may  be  prop- 

1  Mover  v.  Brand,  102  Ind.  301.  first    paragraph  could   not  change   the 

2  Reeder  :•.  Maranda,  66  Ind.  4S5,  force  of  the  ruling  upon  the  record.'' 
4S6.  In  the  case  cited  the  court  said:  Indianapolis,  etc.,  Co.  v.  City  of  Law- 
"  To  be  sure,  the  general  denial  was  renceburgh,  37  Ind.  4S9,  is  to  sub- 
afterwards  withdrawn,  but  its  with-  stantially  the  same  effect.  Anerrone- 
drawal  could  not  make  a  ruling  errone-  ous  ruling  made  after  the  judgment 
ous  which  was  not  so  at  the  time  it  has  been  pronounced  and  entered 
was  made."  A  similar  ruling  was  made  can  not,  it  has  been  held,  overthrow 
in  Cincinnati,  etc.,  Co.  V.  Smith,  127  the  judgment.  Bowrell  v.  Zigler,  19 
Ind.  461,  where  it  was  said:  "As  it  Ohio,  362.  We  suppose,  however,  that 
was  not  available  error  to  sustain  a  de-  much  depends  upon  the  character  of 
murrer  to  the  reply  at  the  time  of  the  the  ruling,  tor  if  it  should  so  operate 
riding,  we  do  not  think  the  appellant  as  to  affect  the  judgment  materially 
could  make  it  available  by  withdrawing  and  directly  it  might  be  error.  We 
the  general  denial  on  a  subsequent  day."  suppose,  also,  that  a  wrong  ruling  >!e- 
In  harmony  with  the  decisions  in  the  priving  a  party  of  a  right  may  he  such 
eases  cited  is  the  decision  in  Kidwell  :\  an  error  as  can  be  made  available  on 
Kidwell,  84  Ind.  224,  22S.  where   it  was  appeal. 

said:    "Appellant's  withdrawing  of  the 


506 


ERROR  IX  JUDICIAL  PROCEEDINGS. 


erly  alleged.  But,  although  error  may  be  properly  alleged,  it 
does  not  necessarily  follow  that  the  judgment  will  be  reversed, 
since  the  paragraph  may  be  good,  or  the  question  may  not  be 
properly  saved.  It  is  one  thing  to  properly  allege  error  and 
quite  another  thing  to  make  it  appear  that  there  is  available 
error.1 


§  590.  The  ultimate  Ruling  is  Decisive — If  the  ultimate  ruling 
in  a  case  is  clearly  right,  intermediate  mistakes  are  not  of  con- 
trolling importance.  If  that  ruling  is  right  there  is  no  error.  A 
mere  mistake  or  irregularity  can  not  be  regarded  as  error 
where  it  is  substantially  rectified  by  subsequent  and  controlling 
rulings.2  But  if  the  mistake  or  irregularity  is  carried  forward 
and  so  warps  the  course  or  rulings  of  the  court  as  to  operate  to 
the  substantial   injury  of  the  party  complaining,  there  is  error 


1  "  Errors  in  judicial  proceedings," 
says  Mr.  Powell,  "  are  such  mistakes  or 
deviations  from  those  principles  of  law 
deemed  necessary  in  the  due  adminis- 
tration of  justice,  which,  when  found  in 
tlie.record  affecting  the  judgment  to  the 
injury  of  the  party,  will  be  corrected  by 
being  reversed  or  modified.  Such  error 
must  be  substantially  wrong,  operating 
to  the  injury  of  the  party,  and  which  he 
lias  not  waived  by  his  act  or  consent,  or 
which  has  not  been  otherwise  cured,  or 
it  will  not  be  considered  by  the  appel- 
late as  an  object  of  reversal."  Powell's 
Appellate  Proceedings,  115.  It  is  evi- 
dent from  this  that  where  a  ruling 
is  right  when  made  there  can  be  no 
error,  and  that  regard  must  be  had  to 
the  facts  and  pleadings  before  the  court 
at  the  time  it  made  its  decision,  for  any 
other  conclusion  would  place  it  in  the 
power  of  parties  to  transform  a  right 
ruling  into  a  wrong  one.  In  short,  no 
ruling  can  be  wrong,  or  erroneous, 
where  there  is  no  deviation  or  depart- 
ure from  the  rules  of  law,  and  there  is 
no  departure  or  deviation  where  the 
court  acts  upon  the  facts  or  pleadings  as 


they  appear,  by  the  record,  at  the  time 
of  making  the  decision. 

3  This  principle  is  illustrated  by  Fell 
v.  Muller,  7S  Ind.  507,  where  it  was 
held  that  if  a  motion  to  suppress  depo- 
sition is  sustained,  but  the  deposition  is 
subsequently  permitted  to  go  in  evi- 
dence, there  is  no  error.  The  principle 
is  applied  in  the  cases  which  hold  that 
errors  in  stating  conclusions  of  law  are 
not  regarded  where  the  ultimate  judg- 
ment is  correct.  Krug  v.  Davis,  101 
Ind.  75,  77;  Whitworth  v.  Ballard,  56 
Ind.  279;  Chicago,  etc.,  Co.  v.  Barnes, 
116  Ind.  126;  Hill  v.  Ilazen,  93  Ind. 
109;  Slauter  v.  Favorite,  107  Ind.  291; 
White  v.  Chicago,  etc.,  Co.,  122  Ind. 
317,  330.  Where  an  instruction  works 
no  prejudice  there  is  no  available  error. 
Wallace  v.  Cravens,  34  Ind.  534.  For 
other  decisions  declaring  that  if  the 
ultimate  conclusion  is  right,  interme- 
diate errors  will  be  disregarded,  see 
Whitworth  v.  Ballard,  56  Ind.  279; 
Pennington  v.  Nave,  15  Ind.  323;  Check 
v.  Glass.  3  Ind.  2S6;  State  V.  Michaels, 
8  Blackf.  436;  Butt  v.  Butt,  11S  Ind.  31, 
33;  Bothwell  :'.  Millikan.  104  Ind.  [62; 
Mason  v.  Mason,  102  Ind.  3S. 


THE  NATURE  OF  JUDICIAL  ERROR.  507 

within  the  meaning  of  the  law.  If  the  wrong  ruling  asserts  a 
definite  and  clearly  marked  theory,  the  presumption  is  that  the 
court  adhered  to  that  theory,  unless  the  record  shows  the  con- 
trary, and  if  that  theory  is  wrong  and  probably  works  injury 
there  is  error. 

§  591.  Presumption  that  the  Court  Adheres  to  a  Declared  or  Indi- 
cated Theory — It  is  the  right  of  parties  to  assume,  in  the  absence 
of  countervailing  rulings  or  indications,  that  a  court  will  adhere 
to  a  theory  clearly  indicated  by  a  ruling.  Where  the  theory 
thus  indicated  is  wrong  and  is  such  as  will  probably  lead  to  an 
erroneous  decision,  it  will  be  presumed  on  appeal,  nothing  to 
the  contrary  appearing,  that  the  case  was  tried  on  the  theory 
indicated  by  the  ruling.1  Thus,  if  the  trial  court  erroneously 
overrules  a  demurrer  to  a  bad  paragraph  of  answer,  the  pre- 
sumption is  that  it  tried  the  case  upon  the  theory  asserted  by 
the  ruling  on  the  answer.  Any  other  rule  would  be  unjust  and 
subversive  of  principle,  since  the  rulings  of  courts  are  theoreti- 
callv  always,  and  actually  in  most  cases,  made  after  solemn  de- 
liberation for  the  purpose  of  indicating  the  lines  upon  which  the 
case  must  be  conducted.2  It  is  no  comfort  to  a  plaintiff  in  a 
case  where  a  bad  answer  is  held  good,  to  be  told  that  there  are 
other  paragraphs  of  the  answer  under  which  the  same  facts  are 
admissible  in  evidence  ;  for  the  declaration  of  the  ruling  is  that 
if  the  defendant  proves  the  facts  stated  in  the  answer  he  will 
succeed,  although  he  proves  no  other.  A  ruling  directly  made 
in  such  a  case  settles  the  law,  as  far  as  the  trial  court  can  settle 
it,  for  the  particular  controversy,  and  if  the   ruling  injures  the 

1  Abdillr.  Abdill,  33  Ind.460;  Kern-  ler,  128  Ind.385,  37  N-  E.  Rep.  721;  Par- 
odies. Caldwell,  46  Ind.  153,  158;  Over  kerf.  Medsker.  So  Ind.  155;  Wheeler:. 
v.  Shannon,  75  Ind.  352,  Sims  v.  City  of  Me-shing-go-me-sia,  30  Ind.  402.  In 
Frankfort,  79  Ind.  446,  449;  Eve  V.  the  case  last  cited  it  was;  said:  '•  It  must 
Louis,  91  Ind.  457,  463;  Board  v.  Arm-  be  held,  nothing  appearing  to  the  con- 
strong,  91  Ind.  52S,  532;  McComas  V.  trary,  that  the  court  below  tried  the 
Haas,  93  Ind.  276,  2S0;  Epperson  v.  case  on  the  theory  of  the  law  as  ruled 
Hostetter,  95  Ind.  5S3.  587;  Weir  v.  on  the  demurrers  in  making  up  the 
State,  96  Ind.  311,  315:  Thompson   v.  issues." 

Lowe,  in    Ind.  272,279,    12  N.  E.  Rep.  *  A    case    tried    on    a   wrong    theory 

476;    Messick  v.  Midland  R.  Co..  128  generally  results  in  a  wrong  judgment 

Ind.  81, 27  N.  E.  Rep.  419;  Scott  v.  Stet-  Board  v.  Johnson,  127  Ind.  23S. 


508 


ERROR   IN  JUDICIAL  PROCEEDINGS. 


plaintiff  he  has  just  reason  to  complain.  The  trial  court  may, 
to  be  sure,  change  its  ruling,  but  there  is  no  presumption  that  it 
will  do  so,  nor  any  presumption  that  it  has  done  so  where  there 
are  no  facts  or  recitals  upon  which  such  a  presumption  can  be 
built.1 


§  592.  That  is  not  Error  which  the  Record  does  not  show  to  be 
Error — Error  appears  by  the  record  whenever  it  exists.  Where 
no  error  appears  of  record  there  is  none  in  contemplation  of 
law.  A  ruling  must  appear  by  the  record  and  from  the  record 
it  must  be  shown  to  be  erroneous  in  the  strict  sense,  that  is,  it 
must  appear  that  the  ruling  was  wrong  and  that  it  probably  so 
operated  as  to  bring  about  a  wrong  final  result.2 

§  593.  A  wrong  Ruling  not  probably  Prejudicial  is  not  Available 
Error — A  ruling  may  be  wrong  and  yet  not  constitute  error  in 


1  A  special  finding  may  show  that 
the  ruling  was  not  prejudicial.  Wall- 
ing v.  Burgess,  122  Ind.  299,  30S,  citing 
Tracewell  v.  Farnsley,  104  Ind.  497; 
Nixon  v.  Campbell,  106  Ind.  47;  Krug 
v.  Davis,  101  Ind.  75. 

2  We  have  elsewhere  shown  that  er- 
rors must  be  manifest  on  the  face  of  the 
record.  To  the  proposition  that  the 
errors  must  appear  to  be  probably  pre- 
judicial we  cite  Harter  v.  Elzroth,  m 
Ind.  159,  where  it  was  said:  "It  has 
long  been  the  settled  rule  that  this  court 
will  not  reverse  a  judgment  of  the  trial 
court,  unless  the  record  affirmatively 
shows  the  existence  of  the  errors  urged 
by  the  complaining  party,  and,  also, 
that  the  errors  were,  or  probably  were, 
prejudicial  to  the  party  against  whom 
they  were  committed."  The  court  cited 
Binns  v.  State,  66  Ind.  42S;  Cline  v. 
Lindsey,  no  Ind.  337;  McKinsey  v. 
McKee,  109  Ind.  209.  We  also  cite 
Peden  v.  Mail,  1  iS  Ind.  556,  559;  Perkins 
v.  I  lav  ward,  124  Ind.  445;  Lett  v.  ■ 
Horner,  5  Blackf.  296;  Indianapolis,  etc., 
Co.  :•.  Herkimer,  46  Ind.  142;  Nixon  v. 
Campbell,    106   Ind.   47;    Kernodle   v. 


Gibson,  114  Ind.  451.  In  the  case  last 
cited  the  court  said  that  "  although  er- 
rors appeared  there  could  be  no  re- 
versal," because  the  record  fails  to  show 
that  any  of  such  matters,  even  if  er- 
roneous, could  or  did  harm  the  plaint- 
iffs. Passmore  v.  Passmore,  113  Ind. 
237.  See,  also,  Morningstar  v.  Musser 
(Ind.),  28  N.  E.  Rep.  1119;  Devereux  v. 
Champion,  etc.,  Co.,  17  So.  Car.  66,  72; 
Livingston  v.  Dunlap,  99  N.  C.  26S; 
McGowan  v.  Wilmington,  etc.,  Co.,  95 
N.  C.417;  Boutelle'r.  Westchester.etc, 
Co.,  51  Vt.  4.  The  rule  was  thus  stated 
by  the  Supreme  Court  of  Ohio:  "To 
justify  the  reversal  of  a  judgment,  the 
record  must  affirmatively  show  not  only 
that  error  intervened,  but  that  it  was  to 
the  prejudice  of  the  party  seeking  to 
take  advantage  of  it."  Scovern  v.  State, 
6  Ohio  St.  2SS.  See,  also,  Reynolds  v. 
Rogers,  5  Ohio,  171,  172;  May  v.  State, 
14  Ohio,  461,  467;  Ball  v.  Cox,  29\V.Ya. 
407,  1  S.  E.  Rep.  673;  McBride  v.  Lath- 
rop,  24  Neb.  93;  Snyder  v.  Snyder,  75 
Iowa,  255,  39  N.  W.  Rep.  297;  State  v. 
Parker,  106  N.  C.  711. 


THE  NATURE  OF  JUDICIAL   ERROR. 

the  true  and  strict  sense  of  the  term.  If  the  record  does  not 
show  that  it  was  probably  prejudicial,  that  is,  that  it  probably 
conduced  to  a  wrong  final  decision,  it  is  not  really  error.  It  is 
not  necessary  that  the  record  should  show  that  the  wrong  rul- 
ing certainly  brought  about  a  wrong  result,  for  it  is  sufficient 
if  it  appears  that  it  probably  influenced  the  court  to  a  wrong 
conclusion.  This  doctrine  is  illustrated  by  the  cases  which 
hold  that  rejecting  competent  evidence  that  could  not  have 
influenced  the  decision,  or  admitting  incompetent  evidence 
where  it  could  not  have  conduced  to  a  wrong  decision,  is  not 
error.1  There  is  some  difficulty  in  giving  practical  effect  to  the 
general  rule  inasmuch  as  it  is  sometimes  difficult  to  determine 
what  cases  fall  under  it  and  what  cases  constitute  exceptions. 

S  594.  Presumption  of  Prejudice  from  Erroneous  Ruling — There 
are  cases  which  seem  to  form  exceptions  to  the  general  rule 
that  the  record  must  make  it  appear  that  the  wrong  ruling  prob- 
ably prejudiced  the  complaining  party,  but  upon  a  close  analy- 
sis it  will  be  found  that  these  cases  are  apparent  rather  than 
real  exceptions.  The  principle  upon  which  they  proceed  is 
that  the  ruling  is  in  and  of  itself  of  such  a  nature  and  of  such 
force  as  to  create  the  presumption  that  it  conduced  to  bring 
about  a  wrong  result.  If  the  evidence  is  in  the  record  and  is 
conflicting  the  rejection  of  material  and  competent  evidence 
may  be  presumed  error  inasmuch  as  the  party  offering  it  had  a 
right  to  put  forward  all  the  material  or  competent  evidence  he 
could  secure,  and  the  denial  of  the  right  in  such  a  case  as  that 
supposed  is  presumptively  prejudicial.2     So  it  may  be  in  many 

'Turner  v.  Fendall,   i    Cranch..n7;  v.    State,   j~    Ind.    251:     Dickinson   v. 

Very  :•.  Watkins,  23  How.  (U.  S.)  469;  Colter,  45  Ind.  445;     Indianapolis,  etc., 

Gregg  v.  Moss,  14  Wall.  564;   Cannon  Co.  v.  Anthony,  43  Ind.  183;   Carter  :•. 

v.  Pratt,  99  U.  S.  619;     Hornbuckle  v.  Pomeroy,  30   Ind.  438;     Aylesworth  v. 

Stafford,    in    U.    S.    3S9;     Lucas    v.  Brown,   31    Ind.    270;     McDermitt    :•. 

Brooks,  iS  Wall. 436;  Wilson  v.  Hoss,24  Hubank,  25  Ind.  232;   Wayne  Co..  etc., 

U.  S.  Sup.  Ct.  Rep.  (Lawyer's ed.)  270;  Co.  v.  Berry.  5   Ind.  2S6;    Scott  v.  In- 

Clark  v.  Fredericks,  105  U.  S.  4;  Cava-  dianapolis  Wagon  Works,  4S  Ind.  75; 

zos  v.  Trevino,  6  Wall.   773;   Chicago  Smith   v.   Smith,  3  Ind.   303;   Pettis  :  . 

v.  Greer,  9  Wall.  726;    Mining  Co.   v.  Johnson,  56  Ind.  139. 

Taylor,  100  U.  S.  37;  Cooper  v.  Coates,  *  So   the   admission   of  incompetent 

21  Wall.  105.      See,  generally,  Broyles  evidence  in   such   a  case  as  that  stated 


510  ERROR   IN  JUDICIAL  PROCEEDINGS. 

other  cases,  as,  for  instance,  where  the  jurymen  bind  themselves 
in  advance  to  abide  by  a  verdict  directed  by  a  majority  vote.1 
Upon  the  theory  that  a  wrong  ruling  on  its  face  is  so  material 
and  so  influential  as  to  prejudice  the  party  against  whom  it  is 
directed,  what,  at  first  blush,  seems  to  be  a  conflict  among  the 
authorities  may  be  easily  and  readily  dissipated.  Where  the 
ruling  discloses  its  own  materiality  and  influence  nnd,  flrinia 
j'acic,  appears  to  be  prejudicial,  it  is  assumed  that  it  was  so 
in  the  absence  of  countervailing  facts,  clearly  showing  that  it 
was  uninfluential.  It  does  not,  as  a  general  rule,  require  anv 
express  recital  or  statement  to  showr  the  character  of  a  wrong 
ruling,  for  in  most  cases  its  vicious  character  appears  upon  its 
face.  But  there  are  cases,  and  not  a  few,  where  the  record  was 
held  not  to  contain  enough  to  affirmatively  show  error.  One  case 
is  where  the  evidence  is  not  in  the  record  and  the  instructions 
are  assailed,  for  in  such  a  case  the  court,  as  will  be  elsewhere 
shown,  will  presume  that  the  instructions  were  correct  as  ap- 
plied to  the  evidence.  Another  case  is  where  all  the  instruc- 
tions are  not  in  the  record.  There  are,  of  course,  other  cases, 
but  those  to  which  we  have  referred  are  sufficient  for  our  pres- 
ent purpose. 

§  595.   No  Error  where  complaining  Party  secures  his  Rights  by 
Amendment — It  requires  no  discussion  to  prove  that  if  a  party 

in  the  text  is  presumptively  erroneous,  conclusion  upon  the  point  under  dis- 
Peterson  v.  Hutchinson,  30  Ind.  3S;  cussion — and  we  consider  no  other — is 
Morgan  v.  State,  31  Ind.  193;  Belle-  probably  correct,  but  some  of  the  broad 
fontaine,  etc.,  Co.  v.  Hunter,  33  Ind.  statements  in  the  opinion  are  hardly 
335;  Thompson  v.  Wilson,  34  Ind.  94;  correct.  It  is  not,  as  the  cases  well 
King  v.  Enterprise  Ins.  Co.,  45  Ind.  .43.  agree,  necessary  that  the  record  should 
See,  also,  Colglazier  v.  Colglazier,  124  always  show  that  a  wrong  ruling  did 
Ind.  196.  It  would,  of  course,  be  other-  not  do  harm;  on  the  contrary,  the  gen- 
uine if  the  record  showed  that  the  in-  eral  rule  is  that  the  record  must  show 
competent  evidence  did  no  harm,  or  that  the  erroneous  ruling  was  prejudi- 
justified  an  inference  that  no  harm  re-  cial  or  was  probably  prejudicial.  See 
suited.  Weik  v.  Pugh,  92  Ind.  3S2;  cases  cited,  ante,  §  591.  It  may  be  true 
Taylor  v.  Williams,  120  Ind.  414;  Morn-  that  there  are  exceptional  cases,  as  in- 
ingstar  v.  Musser  (Ind.),  28  N.  E.  Rep.  dicated  in  the  text,  from  which  the 
1 1 19.  See  "  Verdict  right  on  the  evi-  erroneous  effect  of  the  ruling  will  be 
dence,  erroneous  instructions  harm-  presumed.  The  conclusion  reached  in 
less,"  post,  §  643.  Medsker  v.  Pogue,  1  Ind.  App.  197,  is 
1  Ilowk  v.  Allen,  126  Ind.  56S.     The  correct. 


THE   NATURE  OF  JUDICIAL  ERROR. 


511 


amends  his  pleadings  in  the  trial  court  he  can  not  successfully 
allege  error  on  the  rulings  made  upon  the  pleadings  supplanted 
by  the  amendment.1  If  a  party  desires  to  appeal  from  ruliDgs 
declaring  his  pleadings  bad  he  must  stand  upon  his  original 
pleading.     If  he  amends  his  pleading  it  goes  out  of  the  record.2 

§  596.  Pleadings  npon  which  Error  is  Alleged  must  be  in  the 
Record — The  bare  suggestion  that  pleadings  upon  which  error 
is  alleged  must  be  in  the  record  is  sufficient,  since  the  proposi- 
tion is  self-proving.  If  pleadings  essential  to  a  full  understand- 
ing of  the  questions  sought  to  be  presented  by  the  assignment 
of  errors  are  absent  from  the  record,  the  appeal  will  be  unavail- 
ing.3 If  pleadings  are  lost  they  must  be  substituted  below,  and 
to  accomplish  that  object  the  proper  proceedings  must  be  there 
prosecuted.  After  substitution  pursuant  to  the  order  of  the 
trial  court,  they  may  be  brought  into  the  record  on  appeal  by 
certiorari} 


1  Earp  v.  Board  of  Commissioners  of 
Putnam  County,  36  Ind.  470;  Scotten 
v.  Longfellow,  40  Ind.  23;  Wingate  v. 
Wilson,  S3  Ind.  7S;  Short  v.  Stotts,  5S 
Ind.  29.  But  where  one  paragraph  of 
an  answer  only  is  amended  the  amend- 
ment docs  not  necessarily  waive  excep- 
tion to  a  ruling  sustaining  a  demurrer 
to  another  and  different  paragraph. 
Washburn  v.  Roberts,  72  Ind.  213. 

3  Berghoff  v.  McDonald,  87  Ind.  549; 
State  v.  Hay,  SS  Ind.  274;  Kennedy  V. 
Anderson,  9S  Ind.  151;  Conley  v.  Dib- 
ber, 91  Ind.  413;  Eshelman  v.  Snyder, 
82  Ind.  49S;  Miles  v.  Buchanan,  36 
Ind. 490. 


3  Chisham  v.  Way,  73  Ind.  362;  Sum- 
ner v.  Goings,  74  Ind.  293;  Seager  v. 
Aughe,  97  Ind.  285;  Shackman  v. 
Little,  87  Ind.  1S1;  Louisville,  etc.,  Co. 
v.  Henly,  SS  Ind.  535;  Harrison  School 
Tp.  v.  McGregor,  96  Ind.  1S5;  Clark  v. 
Shaw,  101  Ind.  563;  McGinnis  v.  Gabe, 
7S  Ind.  457;  Keesling  v.  Ryan.  84  Ind. 
89;  State  v.  Fitch,  113  Ind.47S;  Kissell 
v.  Anderson,  73  Ind.  4S5.  Pleadings 
struck  out  on  motion  must  be  brought 
back  into  record  by  bill  of  exceptions. 
See  Bill  of  Exceptions. 

4  Montgomery  v.  Gorrell,  49  Ind.  230; 
Burkam  v.  McElfresh,  SS  Ind.  223; 
Mitchell  v .  Stinson,  So  Ind.  324. 


CHAPTER   II. 


EXERCISE  OF  DISCRETIONARY   POWER. 


§  597- 
598. 
599- 

600. 

601. 
602. 


603. 
604. 
605. 

606. 
607. 

608. 


Judicial  discretion — Definition.       §  609. 
Discretionary  power. 

Scope  of  the  discretionary  610. 

power.  611. 

A  question  of  pure  discretion  is  612. 

not  a  question  of  law.  613. 

Absolute  and  limited  discretion.  614. 
Review   of   rulings   professedly 

made  in  the  exercise  of  discre-  615. 

tionarv  power.  616. 

Abuse  of  discretion.  617. 
Showing  an  abuse  of  discretion. 

Refusal  to  exercise  a  discretion-  61S. 

arv  power.  619. 
Time  to  plead.  620. 
Allowing  amendments  to  plead- 
ings. 621. 
Abuse  of  discretion  in  denying 

amendments.  622. 


Denying  negligent  parties  leave 
to  amend. 

Amendments  after  verdict. 

Failure  of  proof. 

Calling  a  jury. 

Impaneling  the  jury. 

Decisions  upon  the  qualifica- 
tions of  jurors. 

Mode  of  trial. 

Conduct  of  the  trial. 

Control  of  the  delivery  of  evi- 
dence. 

Examination  of  witnesses. 

Ordering  a  view. 

Compulsory  examination  of  the 
person. 

Discharge  of  the  jury  before 
verdict. 

Time  for  filing  bills  of  exceptions. 


§  597.  Judicial  Discretion — Definition — In  every  superior  court 
of  general  jurisdiction  there  resides  authority  which  is  not 
strictly  defined  or  limited  by  fixed  rules  of  law,  but  which  must 
be  exercised  in  order  to  justly  vindicate  substantive  rights, 
properly  frame  issues,  and  duly  conduct  trials.  This  authority 
may  be  said,  in  a  general  way,  to  be  the  power  of  the  judge  to 
rule  and  decide  as  his  best  judgment  and  sound  discretion  dic- 
tate.1    The    term  "judicial  discretion"    is    usually    employed 


1  The  definition  given  in  Rex  v. 
Young,  1  Burr.  556,560,  by  Chief  Justice 
Mansfield,  has  been  often  quoted,  and  is 
probably  as  satisfactory  as  any  general 
definition  can  be.  This  great  judge  said: 
"  But  though  discretion  does  mean  (and 
can  mean  nothing  else  but)  the  exercis- 
ing of  the  best  of  their  judgment  upon 


the  occasion  that  calls  for  it,  yet  if  this 
discretion  be  willfully  abused,  it  is  crim- 
inal, and  ought  to  be  under  the  control 
of  this  court."  Rex  v.  Peters,  1  Burr. 
568,  570;  Rex  v.  Wilkes,  4  Burr.  2527, 
2539;  Dooley  v.  Barker,  2  Mo.  App. 
Ct.  325,328;  Dorman  v.  State,  34  Ala. 
216,  235;   Rooke's  Case,  3  Coke's  Rep. 


(512) 


EXERCISE  OF   DISCRETIONARY    POWER.  513 

as  designating  the  power  mentioned.  The  judicial  discretion 
is  not  an  arbitrary  right  to  do  whatever  an  individual  judge's 
whim,  caprice  or  passion  may  suggest,  for  what  is  not  reason- 
able or  not  in  accordance  with  common  justice  no  judge  has  a 
right  to  do.1  When  a  ruling  or  decision  clearly  and  certainly 
passes  the  limits  of  reason,  justice  and  right,  it  is  not  the  prod- 
uct of  judicial  discretion  and  can  not  be  regarded  as  the  exer- 
cise of  sound  judgment,  but  must  be  attributed  to  passion,  whim, 
caprice,  or  willful  wrong.  Judicial  discretion  is  not  without 
limits  or  conditions,  although  these  limits  or  conditions  are  not 
defined  or  established  by  fixed  rules  or  principles  of  law.  As 
will  be  subsequently  shown,  where  the  law  declares  and  fixes 
definite  and  certain  principles  and  rules  there  is,  in  strictness, 
no  right  as  of  discretion,  since  such  rules  or  principles  consti- 
tute the  measure  of  the  authority  of  the  tribunal.  It  is  the  ob- 
ject of  the  law  to  make  courts  instruments  of  justice,  and  what 
thwarts  this  great  object  can  not  be  regarded  as  judicial  discre- 
tion. The  law  does  not  vest  arbitrary  power  in  any  judge  to 
be  exercised  at  his  pleasure  regardless  of  the  rights  of  parties, 
although  it  does  vest  him  with  some  authority  which  he  is  to 
exercise  according  to  his  best  judgment.2 

§  598.  Discretionary  Power— The  exercise  of  purely  discretion- 
ary power  even  by  ministerial  officers  is  not  subject  to  review, 
and  there  is  much  stronger  reason  for  the  rule  where  such  a 
power  is  exercised  by  a  judicial  tribunal  than  there  is  where  it 
is  exercised  by  ministerial  or  administrative  officers.3  Courts  are 

iooa.    Coke,  as  is  well  known,  censured  30  Cal.  318,  321;  Lvbecker  v.  Murray, 

the  practice  of  leaving  too  much  to  the  58  Cal.  186,  189;  Pinkham  v.  McFar- 

discretion  of  a  judge,  and  his  great  en-  land,  5  Cal.  137;  Thompson  v.  Thorn- 

emy,  Bacon,  expressed  a  similar  opin-  ton,  41  Cal.   626;    Ex  parte  Farmers 

ion.     The  former's  well  known  saying,  Loan,  etc.,  Co.,  129  U.  S.  206. 

"in  judicature  discretion  is  a  crooked  3  Board  v.  Fullen,  111    Ind.  410,  412; 

cord,"  has  been  often  quoted.  Welch  v.  Bowen,  103  Ind.  252;  State  v. 

1  Faber  v.  Bruner,  13  Mo.  541,  543;  City  of  Newark,  4S  N.  J.  Law,  101; 
State  v.  dimming,  36  Mo.  263,  279;  Gozler  v.  Georgetown.  6  W  neat.  593; 
Mabry  v.  Ross,  1  Heisk.  Tenn.  769,  774.  Weaver  v.  Templin,  113  Ind.  298;.  City 

2  Tripp  v.  Cook,  26  Wend.  143,  152;  of  Richmond  v.  Davis,  103  Ind.  449. 
Rex  r. Wilkes,  4  Burr.  2527,  2539;  Baily  The  presumption,  even  as  to  ministerial 
*.  Taafe,  29  Cal.  424;  Stringer  z>.  Davis,  officers,    is    that    they    rightfully   dis- 

33 


514  ERROR   IX  JUDICIAL  PROCEEDINGS. 

presumed  to  proceed  with  deliberation  and  upon  due  informa- 
tion. They  are  organized  to  adjudicate  upon  the  highest  rights 
of  person  and  property,  and  the  judges  are  presumptively  se- 
lected because  of  their  moral  fitness,  their  learning  "  and  their 
devotion  to  justice."  It  is  no  marvel,  then,  that  there  is  complete 
agreement  upon  the  proposition  that  the  exercise  of  purely  dis- 
cretionary power  can  not  be  reviewed.1  The  rule  that  the 
higher  courts  review  and  revise  only  where  there  is  an  abuse 
of  discretion  and  never  where  there  is  no  abuse  is  declared  and 
enforced  in  almost  numberless  cases. 

§  599.  Scope  of  the  Discretionary  Power — Many  matters  rest  in 
the  discretion  of  the  trial  court  and  the  scope  of  the  discretion- 
ary  power  is  very  extensive.  The  difficulty  lies  in  determining 
in  particular  cases  whether  the  ruling  was  made  in  the  exercise 
of  a  discretionary  power  or  in  the  exercise  of  an  imperative 
duty,  and  whether  there  was  or  was  not  an  abuse  of  discretion. 
It  is  not  safe  to  attempt  to  lay  down  any  definite  general  rule  for 
determining  these  questions,  and  hence  we  must  look  to  the  de- 
cisions upon  specific  branches  of  the  general  subject  and  from 
them  ascertain  what  the  rule  is  as  applied  to  particular  classes 
of  cases.  Little  more  can  be  safely  said  than  that  the  discre- 
tionary power  covers  a  large  field,  and  that  it  is  most  often  exer- 
cised in  permitting  or  refusing  amendments  to  pleadings  and  in 
governing  the  introduction  of  evidence,  but  is  by  no  means  con- 
fined to  such  matters.  This  much,  however,  may  be  safely 
affirmed  :   An  imperative  duty  rests  upon  all  courts  to  obey  and 

charged  their  duties.     Wright   v.  For-  St.  2S6;   Morris   v.  Graves,  2   Ind.  354; 

restall,  65  Wis.  341 ;  In  re  Brady,  85  N.  Detro  -'.State,  4   Ind.  200;  Heberd  v. 

Y.  26S;  State  v.  Township  of  Union,  37  Myers,  5  Ind.  94;  Carlisle  v.  Wilkinson, 

N.  J.  Law,  26S;  hi  re  Ingraham,  64  X.  12  Ind.  91;  Dearmond  v.  Dearmond.  12 

Y.  310;  Jackson  School  Tp.  t/.Barlow,  Ind.  455;   Cooper  v.  Johnson,  26   Ind. 

75  Ind.  11S.     Infinitely  stronger  is  the  247;  Blake  v.  Stewart,  29  Ind.  31S;  In- 

reason  for  making  the  like  presumption  dianapolis,  etc.,   Co.  v.  Rutherford.  29 

concerning  the  action  of  courts.  Ind.  82;  Tyin  v.  Halstead,74  N.Y.  C>oy, 

1  Kemper  v.  Trustees,  17  Ohio,    293;  Tucker  v.   Leland,  75  N.  Y.  186;  Cole 

Avery    v.  Ruffin.  4   Ohio,  420;    Holt  v.  v.  Gourlay.  79  X.  Y.  527,  535;   State  v. 

State,    11    Ohio  St.    114;    Gandolfo  v.  Meloney,  79  Iowa,  413,  44  X.  W.  Rep. 

State,    11    Ohio    St.    114;     Dobbins    v.  693;  Jefferson  County   v.  Hawkins,  23 

State,  14  Ohio  St.  493;  Griffin  v.  Veil,  Fla.  223;  Bullock  t'.Cook,  2S  Mo.  App. 

56   Mo.   310;   Legg  v.    Drake,  1    Ohio  222. 


EXERCISE  OF  DISCRETIONARY  POWER.  515 

enforce  the  law  as  it  exists,  for  no  court  is  above  the  law,  nor 
has  any  court  the  right,  or  the  power,  to  violate  or  depart  from 
established  rules  or  principles,  whether  such  established  rules 
and  principles  be  declared  in  statutes  or  embodied  in  what  is 
commonly  called  the  unwritten  law.  If  there  be  such  an  es- 
tablished rule  or  principle,  there  is  no  discretion  ;  if  there  be  no 
such  rule  or  principle,  then,  as  a  general  rule,  discretion  exists. 
It  is  evident,  therefore,  that  whether  a  ruling  is  made  in  the 
exercise  of  a  discretionary  power  or  not  is,  in  most  cases,  to  be 
determined  by  ascertaining  whether  there  is  or  is  not  an  impera- 
tive rule  or  principle  to  which  the  court  is  under  a  duty  to  ad- 
here. All  the  field  of  judicial  action  beyond  that  fenced  in  by 
imperative  rules  and  principles  is  the  field  of  discretion  ;  all  that 
is  so  fenced  in  is  excluded  from  the  scope,  or  sphere,  of  dis- 
cretionary power. 

§  600.    A  question  of  Pure  Discretion  is  not  a  question  of  Law — 

In  a  strict  and  just  sense  a  question  of  discretion  is  not  a  law 
question.1  Whether  a  discretionary  power  has  been  abused 
may,  however,  be  a  question  of  law.  It  follows  from  these 
fundamental  principles  that  where  there  is  a  discretionary  power 
and  no  abuse,  there  is  nothing  for  the  appellate  tribunal  to  re- 
view or  revise,  but  where  there  is  an  abuse  of  discretion  there 
is  a  duty  for  that  tribunal  to  perform,  inasmuch  as  it  must  as- 
certain and  decide  whether  the  abuse  prejudiced  the  substan- 
tial rights  of  the  party  who  makes  complaint.  It  is,  of  course, 
essential,  where  the  point  is  made,  for  the  appellate  tribunal  to 
ascertain  that  there  was  an  abuse  of  discretion,  since  that 
question  lies  at  the  threshold.  If  there  is  found  to  be  nothing 
more  than  an  exercise  of  a  purely  discretionary  power,  there 
investigation  ends,  for  that  conclusion  excludes  further  inquiry. 

§  601.   Absolute  and  Limited  Discretion — Some  of  the  courts 
make  a  distinction  between  absolute  discretion  and  discretion 

1  Lawrence  v.  Farley,  73  N.  Y.  187;  B.  &C.  819;  Ex  parte  Strong,  20  Pick. 

Howell  v.  Mills,  53  N.  Y.  322;  Martin  4S4;  Carpenter  v.  Bristol  Co.,  21  Pick. 

v.  Windsor  Hotel   Co.,  70  N.  Y.   101.  258.     '"A   matter   which  rested   in  the 

See  Matheson  v.  Grant,  2  How.  (U.S.)  sound  discretion  of  the  court  can  not 

263,279;  Marine  Ins.  Co.  v.  Hodgson, 6  be  assigned  for  error."     Powell's  App. 

Cranch.  206;   Mellish  v.  Richardson,  7  Proceedings,  195. 


516  ERROR   IN  JUDICIAL  PROCEEDINGS. 

limited  by  fixed  rules  of  law.1  With  deep  respect  and  defer- 
ence  for  the  able  court  which  asserts  this  distinction,  we  affirm 
that  it  does  not  and  can  not  exist.  If  authority  is  limited  by 
law  it  ceases  to  be  discretionary.  The  fixed  principles  of  law, 
whether  prescribing  rules  of  pleading,  practice,  procedure  or 
evidence,  or  whether  defining  or  establishing  substantive  rights 
of  person  or  property,  destroy  discretion,  so  that  where  such 
fixed  rules  or  principles  exist  there  can  be  no  such  thing  as 
discretionary  authority.2  Fixed  rules  no  court  can  disregard 
without  wrong,  and  fixed  rules  imply  the  non-existence  of  dis- 
cretion. Every  one  has  a  right  to  a  trial  in  a  court  of  justice 
according  to  the  law  of  the  land,  and  established  or  fixed  rules 
are  part  of  that  law.  It  is  true,  that  a  violation  of  a  fixed  rule, 
or  a  deviation  from  settled  principles  does  not  always  constitute 
error.  This  is  so,  however,  simply  and  solely  because  the 
wrong  ruling  does  no  harm,  but  it  is  never  so  because  it  is  dis- 
cretionary with  any  court  to  obey  or  to  disobey  settled  rules  or 
principles. 

§  602.  Review  of  Rulings  Professedly  made  in  the  Exercise  of  Dis- 
cretionary Power — If  a  purely  discretionary  power  is  exercised 
in  ruling  upon  a  question  the  appellate  tribunal  will  not,  as  we 
have  substantially  said,  review  the  ruling,3  but  a  court  may,  in 
assuming  to  exercise  a  discretionary  power,  transcend  the  lim- 
its of  that  power  or  abuse  it.  The  difficulty  arises  in  cases 
where  the  question  is  whether  the  power  exercised  was  exercised 
within  or  without  the  bounds  of  discretion,  or  in  cases  where  the 
question  is  whether  the  power  was  or  was  not  abused.  It  is  not 
legally  possible  for  the  trial  court  to  preclude  a  review  by  as- 
suming to  exercise  a  discretionary  power,  for  if  a  power  not 
discretionary  is  wrongfully  exercised  to  the  manifest  prejudice 

1  People  v.  City  of  Syracuse,  78  N.  nial  or  refusal    as  a   matter  of  favor. 

Y.  56,  61;     Howell  v.  Mills,   53   N.  Y.  Matter  of  Eldridge,  S2  N.  Y.  161,  1C6. 

322;    Anonymous,  59  N.  Y.  313.     "An  2  Piggott  v.  Ramey,  1  Scam.  145. 

absolute  discretion,"  it  is  said,  "is  one  3  The  appellate  court  must,  of  course, 

which  can  not  be  governed  by  any  fixed  look  far  enough  into  the  question  to 

rules."     Tripp  v.  Cook,  26  Wend.  143;  determine  whether  the  power  exercised 

People  v.  Superior  Court,  5  Wend.  114.  was  purely  a  discretionary  one;  if  found 

Discretionary  matters   purely   arc  said  to  be  such,  the  court  will  not  go  further 

to  be  such  as  the  court  acts  on  by  a  de-  with  the  question. 


EXERCISE  OF  DISCRETIONARY  POWER. 


517 


of  the  party  who  complains,  or  if  there  is  a  clear  and  palpable 
abuse  of  the  power  to  the  substantial  injury  of  such  a  party,  the 
decision  will  be  reviewed  and  revised.1 

§  603.  Abuse  of  Discretion — It  has  been  said  in  express  terms, 
or  affirmed  by  clear  implication  in  a  great  number  of  cases, 
that  where  there  is  an  abuse  of  discretion  resulting  in  manifest 
and  harmful  wrong  the  ruling  of  the  trial  court  will  be  deemed 
available  error.2  The  adjudged  cases  leave  no  room  to  doubt 
that  the  appellate  tribunal  will  revise  rulings  involving  an  abuse 
of  discretion,  but  it  is  very  difficult  to  determine  what  will  be 
regarded  as  an  abuse  of  discretion,  for  decisions  upon  this  pre- 
cise point  are  scant.  The  cases  in  which  the  courts  have  re- 
versed a  judgment  for  an  abuse  of  discretion  have  generally 
been  those  where  a  new  trial  was  asked  or  refused,  and  in  such 
cases  the  particular  facts  only  are  considered  and  no  general 
rule  laid  down,  so  that  from  them  we  can  deduce  no  general 
principle.3     The  best  that  can  be  done  is  to  say  that  each  case 


1  The  vigorous  opinion  in  the  case  of 
Third  Great  Western  Turnpike  Co.  v. 
Loomis,  32  N.  Y.  127,  demonstrates  the 
correctness  of  the  general  statements  of 
the  text.  See,  also,  Powell  v.  Jopling, 
2  Jones,  L.  R.  400;  Davis  v.  State,  15 
Ohio,  72;  Gandolfo  v.  State,  11  Ohio, 
114;  Dobbins  v.  State,  14  Ohio  St.  493, 
499;  Holt  v.  State,  11  Ohio  St.  691.  In 
Gordon  v.  Spencer,  2  Blackf.  286,  the 
court  in  speaking  of  a  matter  regarded 
as  one  of  discretion,  said:  "  We  are  of 
opinion  that  the  defendant's  affidavit 
does  not  show  conclusively  that  the 
circuit  court  transcended  the  bounds  of 
a  legal  discretion."  In  McLimans  v. 
City  of  Lancaster,  57  Wis.  297,  it  was 
said :  "  We  can  not  say  that  the  learned 
judge  transcended  a  reasonable  discre- 
tion." 

2  In  Morris  v.  Graves,  2  Ind.  354,  it 
was  said:  "  It  would  certainly  require 
a  plain  case  of  abuse  to  justify  a  supe- 
rior court  in  reversing  the  decision  of 
the  court  below  on  such  points."     The 


court  cited  Sanders  v.  Johnson,  6 
Blackf.  50.  In  many  cases  it  has  been 
said  that  where  a  court  is  invested  with 
a  discretion  the  appellate  court  will  not 
attempt  to  control  its  exercise,  but  will 
interfere  in  case  of  abuse.  Ricketts  z\ 
Spraker,  77  Ind.  371;  Daggett  v.  Flan- 
nagan,7S  Ind. 253;  Langsdale  v. Woolen, 
99  Ind.  575,  579;  Citizens  Bank  v.  Ad- 
ams, 91  Ind.  2S0;  Nalker  v.  State,  102 
Ind.  502;  Stephenson  v.  State,  no  Ind. 
35S;  App  v.  State,  90  Ind.  73;  Wachstet- 
terv.  State,  99  Ind.  290,  292;  Butler  :•. 
State,  97  Ind.  37S;  Black  v.  Thomson, 
107  Ind.  162;  State  v.  Maher,  74  Iowa, 
77,  37  N.  W.  Rep.  2;  Welch  v.  Wetzell 
Co.,  29  W.Va.  63, 1  S.  E.  Rep.  337;  State 
v.  Barrett,  40  Minn.  65,  70,  41  N.  W. 
Rep.  459. 

3  In  one  of  these  cases  it  was  said: 
"Whilst  we  would  not  interfere  with 
the  ruling  of  the  district  court  in  a  case 
admitting  of  some  reasonable  doubt  as 
to  the  proper  exercise  of  that  discretion, 
still,  in  a  case  like  this,  where  the  plead- 


518  ERROR   IN  JUDICIAL  PROCEEDINGS. 

will  be  determined  upon  its  merits,  and  if  the  appellate  court  is 
satisfied  that  the  lower  court  transcended  its  discretion  or 
sly  perverted  it  to  the  manifest  injury  of  the  complaining 
party  it  will  revise  the  ruling.  Such  a  ruling  can  not,  indeed, 
be  justly  said  to  be  one  made  in  the  exercise  of  a  purely  dis- 
cretionary power,  since  an  abuse  of  the  power  is  not,  in  con- 
templation of  law,  an  exercise  of  the  power,  and  if  discretion 
is  transcended  another  field  is  necessarily  invaded.  While  it 
is  correct  to  say  that  the  exercise  of  a  purely  discretionary 
power  is  not  reviewable  on  appeal,  it  is  not  correct  to  affirm 
that  no  rulings  made  within  the  range  of  power  not  limited  and 
defined  by  established  rules  is  beyond  review.  We  have,  there- 
fore, been  careful  to  restrict  our  statement  so  as  to  confine  it  to 
rulings  made  in  the  exercise  of  purely  discretionary  power, 
our  meaning  being  that  there  is  an  exercise  of  a  purely  discre- 
tionary power  only  where  there  is  neither  abuse  nor  a  passing 
out  of  the  bounds  of  judicial  discretion.1 

§  604.  Showing  an  Abuse  of  Discretion — The  rule,  as  stated  by 
the  courts,  imposes  upon  a  complaining  party  the  burden  of 
showing  very  clearly  and  very  strongly  that  the  trial  court 
abused  its  discretion.  Some  of  the  courts  use  language  as  ex- 
plicit  and    strong   as    our  vocabulary  supplies.2      It  is    by   no 

ings  and  evidence  are  fully  brought  be-  Rep.  550;  Dean  v.  Georgia,  etc.,  Co.,  79 
fore  us,  establishing,  as  we  think, beyond  Ga.  211,  9  S.  E.  Rep.  424;  Kennicutt  v. 
doubt,  that  the  ruling  of  the  court  is  er-  Parmalee,  109  N.  Y.  650,  16  N.  E.  Rep. 
roneous,  we  feel  it  to  be  our  duty  to  re-  549;  Sanders  v.  Wakefield,  41  Kan.  11, 
verse  the  proceeding."  See,  generally,  29  Pac.  Rep.  51S;  Ilalpin  v.  Nelson,  76 
Byne  v.  Smith,  76  Ga.  mi  ;  McBride  v.  Iowa,  427,  41  N.  W.  Rep. 62. 
Northern,  etc.,  Co.,  19  Ore.  64,  23  Pac.  1  The  cases  cited  upon  particular  top- 
Rep.  S14;  Grigsby  v.  Schu  arz  (Cal.),  22  ics  will  show,  more  clearly  than  general 
Pac.  Rep.  1041 ;  Albion,  etc.,Co.  v.  Rich-  statements  can  do,  the  limits  of  judicial 
mond,  etc.,  Co..  19  Nev.  225.  Where  a  discretion  and  what  constitutes  an  abuse 
new  trial  is  granted  the  almost  universal  of  power.  We  refer  to  the  cases  cited 
rule  is  that  the  appellate  tribunal  will  in  the  pages  which  follow,  as  illustra- 
not  review  the  discretionary  power  ex-  tive  of  the  general  subject  as  well  as  de- 
en  ised  in  granting  it.  Western  Union  clarative  of  the  law  upon  the  particular 
Tel.  Co.  v.  Kilpatrick,  97  End. 42;  Fitz-  points  to  which  they  are  cited. 
Patrick  v.  Papa,  89  Ind.  17;  Waddle  v.  2  In  Detro  v.  State,  4  Ind.  200,  202, 
ee,  81  Ind.  247;  Reed  v.  Chicago,  Roache,  J.,  speaking  for  the  court,  said, 
etc., Co.,  71  Wis.  399,  37  N.W.  Rep.  225;  in  speaking  of  the  trial  courts,  that: 
Barney  v.  Dudley,  40  Kan.  2.17.  i<>  Pac.  "  In  so  far  as  they  are  vested  with  dis- 


EXERCISE  OF  DISCRETIONARY    POWER.  519 

means  an  easv  task  to  make  it  satisfactorily  appear  that  the 
trial  court  abused  the  discretion  conferred  upon  it,  since  the 
presumption  that  the  trial  court  did  no  wrong  seems  to  be  ap- 
plied in  such  cases  with  peculiar  stringency  and  force.1 

§  605.  Refusal  to  Exercise  a  Discretionary  Power — If  a  court  is 
under  a  duty  to  exercise  a  power,  it  is  error  for  it  to  refuse  to 
do  so,  although  the  power  may  be  discretionary.-  The  refusal 
to  exercise  such  a  power,  where  the  duty  exists,  if  productive 
of  substantial  injury  will  warrant  a  reversal  of  the  judgment. 
But  although  the  refusal  may  be  wrong  it  will  not  constitute 
available  error  unless  it  works  substantial  injury  to  the  com- 
plaining party.  The  appellate  tribunal  may,  it  seems  not  in- 
appropriate to  suggest,  compel  the  lower  court  to  make  some 
ruling,  but  it  can  not  direct  what  the  ruling  shall  be,3  and  from 
this  settled  principle,  even  in  the  absence  of  cases  directly  in 
point,  may  be  deduced  the  conclusion  that  the  refusal  to  rule  is 
a  legal  wrong. 


cretionary  powers,  they  will  be  pre- 
sumed to  be  properly  exercised  until  the 
contrary  is  shown.  All  these  decisions 
are,  it  is  true,  subject  to  revision,  but  in 
all  such  cases  the  ruling  of  the  circuit 
court  will  be  presumed  to  have  been  in 
accordance  with  the  justice  and  merits 
of  the  case,  unless  the  complaining 
party  shows  unequivocally  that  the 
court  has  been  guilty  of  an  abuse  of 
its  discretionary  powers,  and  that  his 
rights  have  been  injuriously  affected 
by  such  abuse."  So,  in  the  case  of  Ray 
V.  Northrup,  55  Wis.  396,  it  was  said: 
"A  motion  of  this  kind  is  usually  very 
much  in  the  discretion  of  the  court  to 
which  it  is  addressed,  and  this  court 
will  not  reverse  an  order  of  the  kind 
unless  the  case  presents  strong  grounds 
for  holding  that  the  discretion  of  the 
court  to  which  the  motion  was  ad- 
dressed was  not  justly  and  fairly  exer- 
cised." Some  of  the  cases  say:  "The 
abuse  must  be  gross  and  plainly  mani- 


fest." Seymour  7'.  Board  of  Supervisors, 
40  Wis.  62;  Smith  v.  Smith,  51  Wis. 
665,  668:  McLaren  v.  Kehlor.  22  Wis. 
297,  300;  Churchill  v.  Welsh,  47  Wis. 
39.  54;  Tierney  v.  Union  Lumber  Co., 
47  Wis.  24S. 

1  In  Gordon  v.  Spencer,  2  Blackf.  2S6, 
the  court  very  clearly  implies  that  no 
other  than  a  conclusive  showing  is  suf- 
ficient. 

2  Tyler  v.  Ilealcy,  51  Cal.  191 ;  Dickey 
v.  Davis,  39  Cal.  565,  569;  Tilton  v. 
Beecher,  59  N.  Y.  176;  Crump  v.  Mor- 
gan, 3  Ired.  Eq.  91,  S.  C.  40  Am.  Dec. 
447;   Smith  v.  Dragert,  61  Wis.  222. 

3  Life  and  Fire  Insurance  Co.  v.  Ad- 
ams, 9  Pet.  573;  State  v.  Laughlin,  75 
Mo.  35S;  Ex  parte  Henderson,  6  Fla. 
279;  Ex  parte  Dickson,  64  Ala.  iSS; 
Floral  Springs  Water  Co.  -.  Rives.  14 
Nev.  431 ;  State  :•.  Cape  Girardeau,  etc., 
73  Mo.  560;  State  v.  Rising,  15  Nev.  164; 
Ex  parte  Cage,  45  Cal.  24S. 


520  ERROR  IN  JUDICIAL  PROCEEDINGS. 

i 

§  606.  Time  to  Plead — A  court  having  a  general  power  to  con- 
trol the  formation  of  issues  may,  in  the  absence  of  explicit  stat- 
utory provisions,  designate  the  time  within  which  pleadings 
shall  be  filed,  and,  as  such  matters  are  within  the  discretion  of 
the  tribunal,  error  can  not  be  effectively  assigned  unless  there 
is  a  palpable  abuse  of  discretion.  It  is,  of  course,  conceivable 
that  the  discretion  may  be  exceeded  or  abused,  and  when  this 
is  so,  error  may  be  well  assigned.  But  where  a  party  seeks  to 
make  the  action  of  the  court  in  such  cases  available  as  error  he 
must  show,  by  affidavit,  or  otherwise,  that  the  time  designated 
was  unreasonable  and  that  the  action  of  the  court  deprived  him 
of  some  substantial  right.  He  must,  it  is  proper  to  suggest, 
remove  the  presumption  which  exists  in  favor  of  the  rightful 
exercise  of  the  discretionary  power  vested  in  the  court.1 

§  607.  Allowing  Amendments  to  Pleadings — The  discretion  of 
the  trial  court  in  the  matter  of  allowing  or  refusing  amendments 
to  pleadings  is  very  broad  and  comprehensive.  It  was  so  at 
common  law.2  It  is  certainly  so  under  the  liberal  rules  declared 
by  the  code.3     A  ruling  allowing  or  refusing  an  amendment 

1  "  It  is  a  familiar  rule,"  said  the  court,  Chittenden,  120  Ind.  37;  Daggett  v. 
in  Black  v.  Thomson,  107  Ind.  162,  164,  Flanagan,  7S  Ind.  253;  Dewey  v.  State, 
"  that  where  a  judicial  tribunal  has  gen-  91  Ind.  173;  Citizens  State  Bank  v. 
eral  power  to  designate  a  time  within  Adams,  91  Ind.  2S0;  Burns  v.  Barenfield, 
which  an  act  may  be  done,  it  may  ex-  S4  Ind.  43;  Grand  Rapids,  etc.,  Co.  v . 
tend  the  time  in  the  exercise  of  a  rea-  Ellison,  117  Ind.  234;  Town  of  Martins- 
sonable  discretion."  See,  generally,  ville  v.  Shirley,  S4  Ind.  546;  Child  v. 
Parker  v.  State,  Si  Ga.  332,6  S.  E.  Rep.  Swain,  69  Ind.  230;  Durham  v.  Fech- 
600;  Bridgman  v.  Dambly,  41  Minn,  heimer,  67  Ind.  35 ;  Duncan  v.  Cravens, 
526.  43  N.  W.  Rep.  482;  Regenstein  v.  55  Ind.  525;  Gaff  ir.  Hutchinson,  3S  Ind. 
Pearlstcin,  30  So.  Car.  192,  S  S.  E.  Rep.  341;  Burr  v.  Mendenhall,  49  Ind.  496; 
S50;  Myers  v.  State,  115  Ind.  554;  Van  Koons  v.  Price,  40  Ind.  164.  See,  gen- 
Allen  v.  Spadonc,  16  Ind.  319;  Jelley  v.  erallv,  Meyer  v.  State,  125  Ind.  335; 
Gaff,  56  Ind.  331.  But  statutory  provis-  Hartford  City,  etc.,  Co.  v.  Love.  125 
ions  of  a  mandatory  nature  can  not  be  Ind.  275;  Nysewander  v.  Lowman,  124 
disregarded.  Kimball  v.  Whitney,  15  Ind.  584;  Johnson  v.  Conklin,  119  Ind. 
Ind.  280;  Runnion  v.  Crane,  4  Blackf.  109;  Langsdale  v. Woollen,  99  Ind.  575; 
466.  Bever  v.  North,  107  Ind.  544;  Burk   V. 

3  Mellish   v.   Richardson,  7   B.   &  C.  Andis,  9S  Ind.  59,  62;   Pittsburgh,  etc.. 

S19;     Marine   Ins.   Co.  V.    Hodgson,  6  Co.   v.  Martin,   S2   Ind.  476;    Burns  v. 

Cranch.  206.  Barenfield,  84  Ind.  43;   Hubler  v.  Pul- 

3  Jenne  v.  Burt,  121  Ind.  275;   Levy  v.  len,  9  Ind.  273. 


EXERCISE  OF   DISCRETIONARY    POWER. 


521 


can  seldom  be  made  available  as  error  if  made  at  any  time  be- 
fore the  finding  or  verdict,  and  there  are,  indeed,  some  amend- 
ments that  on  appeal  will  be  regarded  as  having  been  made, 
although  not  actually  made  by  the  party.1  There  seems  to  be 
some  confusion  in  the  cases  as  to  whether  an  amendment  chang- 
ing the  issues  can  be  permitted  after  the  trial  has  begun.  Af- 
firming that  there  can  be  such  an  amendment  are  many  cases,2 
and  denying  it  are  others.3  We  think  the  conclusion  required 
bv  the  later  and  better  considered  cases  is  that  permitting  a 
radical  amendment,  even  so  radical  as  to  change  the  issue,  is 
not  necessarily  and  invariably  available  error,  although  it  may 
sometimes  be  so,  but  that  if  the  complaining  party  duly  shows 
that  the  amendment  is  such  as  to  entitle  him  to  further  time  to 
plead  or  to  prepare  for  trial,  and  he  duly  makes  application  for 
time,  it  will  be  error  to  overrule  his  application.4     It  is  implied, 


1  Reeder  v.  Say  re,  70  N.  Y.  180,  1S9; 
Lounsbury  v.  Purely,  iS  N.  Y.  515; 
Watt  v.  Pittman,  125  Ind.  168;  Ke-tuc- 
e-mun-guah  v.  McClure,  122  Ind.  541; 
Chaney  v.  State,  uSInd.  494;  Buchan- 
an v.  State,  106  Ind.  251.  But  amend- 
ments which  are  of  controlling  impor- 
tance and  which  go  to  the  substance 
can  not  be  made  on  appeal.  Tooker  v. 
Arnoux,  76  N.  Y.  397;  Scofield  v. 
Whitelegge,  49  N.  Y.  259.  An  amend- 
ment on  appeal  will  be  allowed  in  order 
to  sustain  a  judgment,  but  not  to  over- 
throw it.  Volkening  v.  DeGraaf,  Si  N. 
Y.  26S;  Gasper  v.  Adams,  24  Barb.  2S7; 
Englis  v.  Furniss,  3  Abb.  Pr.  S2; 
Williams  v.  Birch,  6  Bosw.  674;  Mc- 
Ginniss  v.  Mayor,  etc.,  6  Daly,  416; 
Brown  v .  Colie,  1  E.  D.  Smith.  265. 

1  Burr  v.  Mendenhall,  49  Ind.  496; 
Ostrander  v.  Clark,  S  Ind.  211;  Burns 
v.  Fox,  113  Ind.  205;  Durham  v,  Fech- 
heimer,  67  Ind.  35;  Child  v.  Swain,  69 
Ind.  230;  Hay  v.  State,  5S  Ind.  337; 
Leib  v.  Butterick,  6S  Ind.  199;  Darrell 
v  Hilligoss,  etc.,  Co..  90  Ind.  264.  267; 
Town  01  Martinsville  v.  Shirley,  84  Ind. 
^46;  Levy  v.  Chittenden.  120  Ind.  37; 
Chicago,  etc.,  Coal  Co.  v.   Hunter,  12S 


Ind.  213;  Chicago,  etc.,  Co.  v.  Jones, 
103  Ind.  3S6;  Voltz  v.  Newbert,  17  Ind. 
1S7;  Musselman  v.  Musselman,  44  Ind. 
106;  Myers  v.  Moore  (Ind.  App.  Ct.), 
2S  N.  E.  Rep.  724.  See,  also,  Ahrens 
v.  State  Bank,  3  So.  Car.  401;  Hill  v. 
Chipman,  59 Wis.  211;  Brauns  v.  Sterns, 
1  Ore.  367. 

3  Kerstetter  v.  Raymond,  10  Ind.  199; 
Danville,  etc.,  Co.  v.  State,  16  Ind.  456. 

4  A  party  who  delays  until  the  trial  has 
begun  is  not  entitled  to  leave  to  amend 
as  a  matter  of  course,  but  he  must  make 
a  clear  showing  of  right;  if  he  does  not 
it  can  not  be  justly  held  on  appeal  that 
there  was  an  abuse  of  discretion.  It 
has  been  said,  again  and  again,  that  the 
trial  court  should  require  cause  to  be 
clearly  shown  and  that  it  should  be 
slow  to  grant  leave  to  make  material 
amendments  after  the  trial  has  been 
entered  upon,  although  in  allowing  for- 
mal amendments  it  should  be  liberal. 
.\>  to  the  one  ela-s  of  amendments  the 
rule  is  liberal,  as  to  the  other,  strict. 
Amendments  may  be  made,  as  is  well 
known,  as  of  course,  before  the  adverse 
party  has  answered  or  replied;  in  all 
other  eases  leave  must  he  obtained.  The 


522  ERROR  IN  JUDICIAL  PROCEEDINGS. 

of  course,  that  the  complaining  party  must  affirmatively  show 
that  he  demanded  time  and  that  his  demand  was  well 
founded  ;  or  that  he  has  shown  that  he  was  wrongfully  misled. 
It  seems  clear  that  where  there  is  such  a  demand  well  made 
and  supported  a  denial  is  an  ahuse  of  discretion. 

§  608.  Abuse  of  Discretion  in  denying  Amendments — There  may 
be  cases,  although  rare  ones,  where  the  denial  of  leave  to 
amend  asked  after  the  issues  are  closed  will  be  adjudged  such 
an  abuse  of  discretion  as  entitles  the  party  injured  to  a  reversal.1 
It  is  obvious  that  in  such  a  case  there  must  be  an  appropriate 
and  reasonable  application  for  leave  to  amend,  supported  by  a 
full,  strong  and  clear  showing  in  order  to  constitute  the  denial 
available  error,  for  the  case  is  one  appealing  primarily  to  the 
discretion  of  the  court,  and  is,  also,  one  forming  a  rare  excep- 
tion to  a  general  rule  unusually  free  from  exceptions.  The 
arbitrary  refusal  to  allow  amendments  upon  sufficient  cause 
shown  is  available  as  error  where  a  substantial  right  is  denied 
for  the  reason,  already  suggested,  that  in  so  ruling  the  court 
abuses  the  discretion  conferred  upon  it  by  law.  Probably  as 
good  a  general  test  as  can  be  suggested  for  determining  whether 
an  amendment  should  be  allowed  is  that  found  in  the  answer  to 
the  question,  is  the  amendment  in  furtherance  of  justice?2     If 

express  provision  that  leave  must  be  to  be  granted  or  refused  accordingly." 
obtained  carries  the  necessary  implica-  The  case  from  which  we  have  quoted 
tion  that  the  court  must  often  deter-  approves  Burr  v.  Mendenhall,  49  Ind. 
mine  whether  or  not  leave  should  be  496,  as  does  the  case  of  Shropshire  :■. 
granted,  ami  it  results  from  this  that  Kennedy,  84  Ind.  in.  In  the  case  last 
much  is  confided  to  its  discretion.  named  the  affidavit  assuming  to  show 
1  Chicago,  etc..  Co.  v.  [ones,  103  Ind.  cause  was  declared  insufficient,  and  it 
386.  In  the  ease  eited  it  was  said:  was  also  decided,  that  there  could  be  no 
'•  Whether  a  party  shall  he  allowed  to  available  error  if  the  pleading,  as 
amend  his  pleadings  after  the  issues  are  amended,  would  still  be  bad.  See.  also. 
closed  is  a  matter  resting  very  much  in  Brauns  v.  Stern,  1  Oregon,  367;  Smith 
the  discretion  of  the  nisi  frius  court.  V.  Gould,  61  Wis.  31;  Ilexter  V. 
The  fact  that,  in  such  a  case,  leave  of  Schneider,  14  Oregon,  1S4. 
court  is  necessary,  implies  the  right  of  2  In  House  v.  Duncan,  50  Mo.  453.  it 
the  court  to  refuse  permission  to  amend  was  said:  "Amendments  are  favored 
in  any  ca>e  excepl  upon  good  cause  and  should  be  literally  made  in  further- 
shown,  and,  even  when  such  a  showing  ance  of  justice."  In  many  other  cases 
is  made,  the  matter  is  still  within  the  a  similar  doctrine  has  been  declared 
legal  discretion  of  the  court,  the  leave  and  enforced.     Smith  v.  Yreka  Water 


EXERCISE  OF  DISCRETIONARY    POWER. 


it  affirmatively  and  clearly  appears  to  be  so,  it  is  error  to  deny 
it  to  the  prejudice  of  a  party  who  appropriately  and  oppor- 
tunely asks  leave  to  amend.1 

§  f)09.  Denyiug  Negligent  Parties  Leave  to  Amend — Where  no 
sutlicient  cause  authorizing  an  amendment  is  shown  there  is  no 
abuse  of  discretion  in  denying  leave  to  amend,  and  hence  no 
available  error.2  It  goes  with  the  saying  that  if  a  party  has 
been  inexcusably  dilatory  or  negligent  he  can  not  successfullv 
complain  if  the  court  exercises  its  discretion  against  him  bv 
denying  him  leave  to  amend  his  pleadings.3  It  is  to  be  borne 
in  mind  that  where  leave  is  refused  the  presumption  favorable 
to  the  trial  court  puts  upon  the  complaining  party  the  burden  of 
affirmatively  showing  an  abuse  of  discretion,  or  that  the  bounds 
of  discretion  were  transcended,  and,  also,  of  further  showing 
that  the  wrong  of  the  trial  court  did  him  substantial  injury. 


Co.,  14  Cal.  201;  Lestrade  v.  Barth,  17 
Cal.  285,  2SS;  Kirstein  v.  Madden,  3S 
Cal.  158,  162;  Valencia  v.  Couch,  32 
Cal.  339,  346;  Ilavden  v.  Harden,  46 
Cal.  332;  Connellev  v.  Peck,  3  Cal.  75, 
82;  Pierson  v.  McCahill,  22  Cal.  127, 
130;  Harkins  v.  Edwards,  1  Iowa,  296; 
Dixon  v.  Dixon,  19  Iowa,  512;  Tegeler 
v.  Shipman,  33  Iowa,  194;  Miller  v. 
Perry,  3S  Iowa,  301;  Carr  :•.  Moss,  S7 
Mo.  447.  It  is  said  by  the  Iowa  court, 
in  substance,  that  the  rule  is  to  allow 
amendments,  the  exception  to  refuse. 
Pride  V.  Wormwood,  27  Iowa,  2;; 7; 
Ilinkle  v.  Davenport,  3S  Iowa,  355. 
See,  generally,  Brickman  v.  South  Car- 
olina R.  Co.,  S  So.  Car.  173;  Schreck- 
engast  :•.  Ealy,  16  Neb.  510;  Connell  v. 
Putnam,  5S  N.  H.  335:  Jefferson  Co,  :•. 
Ferguson,  13  111.  33;  Tatem  v.  Potts,  5, 
Blackf.  534. 

1  But  it  is  to  be  borne  in  mind  that 
one  who  asks  leave  to  amend  at  a  later 
stage  of  the  proceedings  is  prima  facte 
culpably  lacking  in  diligence  ami  is  not 
always  entitled  to  make  such  a  request 


as  of  right.  And  it  is  also  to  be  re- 
membered that  the  presumption  is 
against  a  party  denied  such  leave;  that 
presumption  must,  of  course,  be  over- 
come or  the  ruling  will  not  be  disturbed. 

2  Holladay  z\  Elliott,  3  Oregon,  340. 

3  Sayers  v.  First  National  Bank,  S9 
Ind.  230.  In  Weed.  etc..  Co.  v.  Phil- 
brick,  70  Mo.  646,  64S,  it  was  held  that 
it  was  the  duty  of  the  court  "  to  so  con- 
strue the  law  in  relation  to  pleadings 
and  amendments  to  the  same  as  10  dis- 
courage negligence  and  deceit. to  prevent 
delay  and  secure  the  parties  from  being 
misled."  In  that  case  it  was  held  an 
abuse  of  discretion  to  permit  an  an- 
swer denying  the  execution  of  a  written 
instrument  to  be  filed  after  the  trial  had 
been  entered  upon.  While  the  general 
rule  is  that  stated  in  the  text,  it  i-  prob- 
able that  there  may  be  cases  where  the 
demands  of  justice  are  so  clear  and 
strong  that  the  element  of  delay  would 
occupy  a  subsidiary  place  and  yield  to 
the  stronger  elements. 


524  ERROR    IN  JUDICIAL  PROCEEDINGS. 

§  GIG.  Amendments  After  Verdict — We  have  already  said  that 
there  are  some  amendments  that  may  be  regarded  as  having 
been  made,  even  after  the  case  has  entered  the  appellate  court, 
but  amendments  that  can  there  be  made,  or  there  regarded  as 
made,  are  not  such  as  are  of  a  material  and  controlling  charac- 
ter. It  is,  indeed,  the  general  rule  that,  after  a  verdict,  or  find- 
ing, amendments  which  radically  change  the  issue  are  not 
allowable.1  This  is  obviously  the  true  rule,  since  cases  must  be 
tried  upon  the  issue  tendered,  the  evidence  must  be  confined  to 
the  issue,  and  the  verdict  or  finding  must  keep  within  the  issue 
made  by  the  pleadings.  But,  while  the  rule  is  that  amend- 
ments after  verdict  are  not  allowable  where  they  entirely 
change  the  issue,  it  is  also  true  that  amendments  may  be  made 
to  avoid  a  variance.2 

§611.  Failure  of  Proof — The  cases  cited  in  the  note  to  the 
preceding  paragraph,  to  which  many  more  might  easily  be 
added,  leave  no  doubt  that  a  mere  variance  maybe  obviated  by 
amendment  made  after  verdict.  Indeed,  in  many  cases  im- 
material variances  are  disregarded  on  appeal,  even  where  there 
is  no  amendment.     But  there  is  an  essential  difference  between 


1  Brown  v.  Smith,    24    111.  196,   19S;         2  Smith  v.  Flack,  95  Ind.  116;  Ilullr. 

Redman  v.  Taylor,  3  Ind.  144 ;   Seivers  Green,  20  Ind.  388;   Hamilton  v.  Win- 

V.  McCall,  1  Ind.  393;    Maxwell  v.  Day,  terrowd,    43  Ind.  393;   Perdue  V.  Ald- 

45   Ind.  509;     Aiken  v.  Bruen,  21   Ind.  ridge,  19  Ind.  290;   Woodward  v.  Wil- 

137;   Cincinnati,  etc.,  Co.  v.  Bunnell,  61  cox,  27  Ind.  207;  Torr  v.  Torr,  20  Ind. 

Ind.  1S3.     In  Levy  v.  Chittenden,  120  11S;    Warbritton  v.  Cameron,   10  Ind. 

Ind.  37,  40,  it  is  said:     "  But  this  court  302;   Hickey  v.  State,  23  Ind.  21;  Lister 

has  always  held  that  it  is  error  to  allow  v.  McNeal,    12   Ind.    302;    Cincinnati, 

an    amendment  to  the  pleading  which  etc.,  Co.  v.  Bunnell,  61  Ind.  183;  Schei- 

changes  the  nature  of  the  cause  of  ac-  hie   V.   Law,  65    Ind.    332;    Randies    v. 

tidn  or  defence,  after  the  trial  has  heen  Randies, f>3  Ind.  93;  Boynton  v.  Sisson, 

concluded."     This    is  a  correcr    state-  56  Wis. 401;  Forcy  v.  Leonard,  63  Wis. 

ment  of  the  law,  but  an  erroneous  im-  553.     See  Rettig  v.  Newman,  99   Ind. 

pression  is  likely  to  arise  from  the  cita-  424;  Judd  v.  Small,  107  Ind.  398;    Rec- 

Lion    with   apparent    approval  of  Miles  ord  V.  Ketcham,  76  Ind.  4S2;   Bovd  v. 

v.   Vanhorn,    17   Ind.    245;     Proctor   v.  Caldwell,  95   Ind.  392;   Burns   v.   Fox, 

(  )\v. 11s. iS  Ind.  21 ;  Hoot  :■.  Spade. jo  Ind.  113  Ind.  205.      An   immaterial  variance 

326.     The    broad    doctrine   asserted  by  may   be   disregarded,  although   there   is 

those  eases  can  not  now  be  regarded  as  no  amendment.     Louisville,  etc.,  Co.  v . 

sound,  as  appears  from  the  cases  cited  Overman,  8S  Ind.  115. 
in  Levy  v.  Chittenden 


EXERCISE  OF    DISCRETIONARY    POWER 


a  mere  variance  and  a  failure  of  proof,  and  this  difference  leads 
to  important  results.  It  is,  however,  sufficient  for  our  purpose 
to  say  that  the  general  rule  is  that  variances  are  obviated  by 
the  statute,  but  a  failure  of  proof  is  not,  and  that  after  verdict 
an  amendment  can  not  be  made  to  remedy  an  infirmity  created 
by  a  failure  of  proof.  In  illustration  of  this  general  rule  may 
be  cited  the  cases  wherein  it  is  held  that  where  a  plaintiff  de- 
clares upon  a  legal  title  the  proof  fails  although  an  equitable 
title  be  shown.1  There  are  many  other  cases  which  assert  and 
enforce  the  doctrine  we  have  stated. - 

§  612.  Calling  a  Jury — In  actions  at  law  it  is  the  imperative 
duty  ■  of  the  court  to  call  a  jury  when  the  proper  request  is 
made.3  But  in  order  to  lay  the  foundation  for  available  error, 
the  party  asking  a  jury  must  cause  the  record  to  show  a  due 
request,  refusal    and    exception.1     If  there  is  no  request,   the 


1  Nichol  v.  Thomas,  53  Ind.  42;  Rowe 
v.  Beckett,  30  Ind.  154;  Stehman  v. 
dull,  26  Ind.  436;  Brown  v.  Freed,  43 
Ind.  253;  Groves  v.  Marks,  32  Ind.  319; 
McMannus  v.  Smith,  53  Ind.  211;  Hunt 
v.  Campbell,  S3  Ind.  48;  Stout  v.  Mc- 
Pheeters,  84  Ind.  585;  Johnson  v.  Pon- 
tious,  nSInd.270;  Castor  v.  Jones,  107 
hul.  2S3,  2S7;  Deputy  v.  Mooney,  97 
Ind.  463. 

2  Cincinnati,  etc.,  Co.  v.  Bunnell,  61 
Ind.  1S3;  Farrell  v.  State,  3  Ind.  573; 
Ellis  v.  Ford,  5  Blackf.  554;  Jefferson- 
ville,  etc.,  Co.  v.  Worland,  50  Ind.  339; 
Buckey  v.  Stanley.  5  Blackf.  102:  Hat- 
ten  v.  Robinson,  4  Blackf.  479;  Morgan 
v.  Incorporated,  etc.,  Co.,  64  Ind.  213. 
The  first  of  the  cases  cited  decides  that 
a  failure  of  proof  can  not  be  obviated  by 
amendment  and  in  this  is  abstractly 
correct,  but  in  assuming  that  the  same 
rule  applies  before  verdict  as  applies 
after  verdict  the  decision  is  wrong.  It 
seems  to  us  that  the  case  of  Burr  v. 
Mendenhall,  49  Ind.  496,  and  the  many 
cases  approving  it,  were  overlooked, 
and  an  erroneous  conclusion  reached. 

3  Galway  v.  State.  93  Ind.  161. 


*  Sheets  v.  Bray,  125  Ind.  33,  36; 
Griffin  v.  Pate,  63  Ind.  273.275;  Hauser 
v.  Roth,  37  Ind.  S9;  Madison,  etc.,  Co. 
v.  Whiteneck,  S  Ind.  217.  218;  Preston 
v.  Sanford,  21  Ind.  156;  Heacock  v.  Lu- 
buke,  107  111.  396;  Cushman  v.  Flana- 
gan, 50  Texas,  3S9;  Wanser  v.  Atkinson, 
43N.J.  L.  571;  Hall  v.  Chicago,  etc., 
Co.,  65  Iowa,  25S;  A" it  rified,  etc..  Co.  v. 
Edwards,  135  Mass.  591;  Bonham  v. 
Mills.  39  Ohio  St.  534.  The  refusal  to 
call  a  jury  must  be  assigned  as  a  cause 
for  new  trial  or  it  will  not  be  considered 
on  appeal.  Ketcham  v.  Brazil,  etc.,  I 
SS  Ind.  515;  Mattingly  v.  Paul,  SS  Ind. 
95.  Waiver  of  jury  trial  may  be  made 
by  failure  to  appear  at  calling  of  case. 
Indianapolis,  etc.,  Co.  v.  Caven,  53  Ind. 
258;  Love  v.  Hall,  76 Ind. 326.  "Call- 
ing a  ease  for  trial  is  an  announcement 
or  declaration  by  the  court  that  a  cause 
has  been  reached  in  its  order  and  that 
the  judicial  examination  of  the  issues 
of  law  or  fact  upon  which  the  case  de- 
pends are  about  to  begin."  Requests 
or  motions  which  are  required  to  be 
made  within  a  given  time  before  the 
case  •"is  called  for  trial"  will  be  in  due 


526 


ERROR    IN  JUDICIAL   PROCEEDINGS. 


presumption  is  that  the  parties  acquiesced  in  the  action  of  the 
court,  or  that  they  voluntarily  suhmitted  the  case  to  the  court 
for  trial,  for,  in  the  absence  of  countervailing  facts,  it  must  be 
assumed  that  the  court  did  not  depart  from  the  law  nor  usurp 
the  functions  of  the  jury.  In  chancery  cases  the  court  exer- 
cises an  unfettered  discretion  ;  it  may  call  a  jury  or  not  at  its 
pleasure,  and  its  action  will  not  be  reviewed  on  appeal.1  In 
such  cases  it  is  entirely  discretionary  with  the  court,  whether  it 
will  or  will  not  accept  and  act  upon  the  finding  of  the  jury.2 
Where  a  case  is  for  the  jury,  but  the  part}',  instead  of  request- 
ing a  trial  of  the  whole  issue,  requests  that  a  single  question  of 
fact  be  submitted  to  the  jury,  a  jury  trial  is  waived.3  If  the 
court  enters  upon  the  trial,  but  subsequently  sets  aside  the  sub- 
mission and  calls  a  jury,  it  exercises  a  discretionary  power, 
and,  unless  there  are  some  peculiar  and  unusual  elements  in 
the  case,  no  error  can  be  successfully  assigned  upon  such  ac- 
tion.1 Where  the  parties  and  the  court  assume  that  the  case 
is  a  suit  in  equity  and  not  an  action  at  law,  the  theory  involved 


season,  if  made  before  the  case  is  actu- 
ally called,  although  an  earlier  time 
may  have  been  fixed  for  trial  by  agree- 
ment of  parties.  Moore  v.  Sargent, 
112  Ind.  4S4,  4S6. 

1  Holmes  v.  Stateler,  57  111.  209.  But 
upon  the  principle  that  parties  will  be 
held  to  trial  court  theories,  if  parties 
and  court  assume  that  the  case  is  one 
for  a  jury  and  proceed  on  that  theory 
entirely,  then  the  cause  must  be  con- 
ducted according  to  the  rules  govern- 
ing jury  trials.  Summers  v.  Great- 
house,  S7  Ind.  205;  Platter  v.  Board, 
103  Ind.  360,  384;  Dawson  v.  Shirk, 
[02  Ind.  184,  1S8.  See.  generally,  as  to 
effect  of  assuming  a  given  theory  in  the 
trial  court.  Daniels  v.  Brodie,  54  Ark. 
216,  11  Law.  Rep.  Anno.  81,  83;  San 
Diego,  etc.,  Co.  v.  Neale,  80  Cal.  83,  11 
Lawyers  Ren.  Anno.  604.  See,  also, 
"  Holding  Parties  to  Trial  Court  Theo- 
ries,'' Chapter  XXIV. 

2  Rariden  v.  Rariden,  28  N.  E.  Rep. 
Joi;  Koons  v.  Blanton  (Ind.),  27  N.  E. 


Rep.  334;  Platter  v.  Board,  103  Ind.  360; 
Bingham  v.  Stage,  123  Ind.  2S1. 

3  Spencer  -•.  Robbins,  106  Ind.  580, 
5S8.  It  was  said  in  the  case  cited:  "In 
a  case  which  is  triable  by  a  jury,  gen- 
erally, it  is  not  error  to  refuse  to  sub- 
mit a  particular  question  of  fact  to  the 
jury.  The  request  to  submit  a  particu- 
lar question  to  the  jury,  as  whether  a 
deed  was  executed,  was  a  waiver  of  the 
right  to  a  jury  to  try  the  case  gener- 
ally." 

4  The  reporter's  note  to  Mattingly  v. 
Paul,  SS  Ind.  95,  incorrectly  represents 
the  court  as  deciding  that  such  action  is 
irregular;  the  court  simply  granted  for 
arguments  sake, — but  did  not  decide, — 
that  such  action  was  irregular.  It  cer- 
tainly can  not  be  held  that  such  a  pro- 
ceeding is  irregular  in  the  absence  of 
an  affirmative  showing  that  there  was 
an  abuse  of  discretion,  since  the  pre- 
sumption is  that  the  trial  court  acted 
upon  sufficient  cause  and  had  just  rea- 
son to  set  aside  the  submission. 


EXERCISE  OF   DISCRETIONARY    POWER. 


in  the  assumption  will  prevail  on  appeal  and  the  appellate  tri- 
bunal will  not  inquire  whether  the  right  mode  of  trial  was  or 
was  not  adopted.1 

§  613.  Impaneling  the  Jury — In  impaneling  the  jury  and  de- 
termining what  questions  shall  be  asked  the  jurors  upon  th<  ir 
examination  touching  their  competency  and  qualifications,  the 
trial  court  necessarily  exercises  a  wide  discretion.2  It  may  be 
said,  as  introductory  to  a  consideration  of  particular  rulii 
that  where  there  is  a  challenge  for  cause  and  the  court  sus- 
tains such  a  challenge,  the  presumption  is  that  the  person  chal- 


1  In  Shew  V.  Hows,  126  Ind.  474,  476, 
it  was  said:  "  But  the  whole  theory  of 
the  case  from  the  inception  to  the  final 
determination  in  the  trial  court  charac- 
terizes it  as  a  suit  in  equity  and  not  as 
an  action  at  law,  and  it  must  rest  upon 
that  theory  still."  The  court  cited 
Bingham  v.  Stage,  123  Ind.  2S1;  Wag- 
ner 0.  Winter,  122  Ind.  57;  Peters  v. 
Guthrie,  119  Ind.  44;  Cottrell  v.  ^Etna 
Life  Ins.  Co.,  97  Ind.  311. 

1  It  is,  perhaps,  well  enough  to  say 
hei  e  that  objections  to  the  qualifications 
of  persons  called  as  jurors,  and  objec- 
tions to  the  manner  of  selecting  or  im- 
paneling them,  must  be  promptly  made, 
tor  if  not  made  until  after  the  trial  has 
fully  begun  they  will  be  deemed  waived. 
Dolan  v.  State,  122  Ind.  141,  144;  Cole- 
man v.  State,  in  Ind.  563;  Henningw. 
State,  106  Ind.3S6;  Smurr  v.  State,  105 
Ind.  125.  An  acceptance  of  the  jury 
terminates  the  right  to  object,  as  a  gen- 
eral rule,  unless  it  is  clearly  made  to 
appear  that  the  objection  was  not 
known  to  the  complaining  party  and- 
that  he  exercised  reasonable  diligence 
to  discover  the  alleged  grounds  of  dis- 
qualification. Achev  v.  State.  64  Ind. 
56;  Indianapolis,  etc.,  Co.  r.Pitzer,  109 
Ind.  179;  Kennegar  v.  State,  120  Ind. 
176,  1S0;  Beauchamp  v.  State.  6  Blackf. 
299;  Munly  V.  State.  7  Blackf.  593; 
Morris  v.  State,  7  Blackf.  607,    Wyatt 


:'.  Noble,  8  Blackf.  507;  Croy  v.  Si 
32  Ind.  384;  Alexander  v.  Dunn,  5  Ind. 
122;  Estep  v.  Waterous,  45  Ind.  140; 
Kingen  v.  State.  46  Ind.  132;  Gillooley 
V.  State,  58  Ind.  1S2.  A  party  must 
make  diligent  use  of  the  opportunity 
the  law  affords  him.  King  v.  Sutton, 
S  B.  &  C.  417;  State  v.  Quarrel,  2  Bay, 
15°;  Queen  v.  Hepburn,  7  Cranch. 
290;  Jeffries  v.  Randall,  14  Mass.  205; 
State  v.  Funck,  17  Iowa,  365;  Tur- 
ner v.  Hahn,  1  Col.  23;  Taylor  v. 
Greely,  3  Me.  204.  If  a  juror  deceives 
a  diligent  party  it  is  cause  for  a  new 
trial.  Rice  v.  State,  16  Ind.  29S.  Croy 
v.  State;  ^2  Ind.  384,  3S7.  does  not 
overrule  Rice  V .  State  upon  this  point. 
In  Buck  :•.  Hughes,  127  Ind.46.49.it 
was  said:  "As  a  general  rule,  parties 
may  rely,  and  have  a  right  to  rely,  on 
the  statements  of  a  juror,  and  are  not 
required  to  institute  an  investigation  as 
to  the  truth  of  the  statements  of  a  juror 
before  accepting  him  as  such.  But  a 
party  has  the  right,  if  he  knows  at  the 
time,  of  facts  making  the  juror  incompe- 
tent to  present  them  to  the  court,  and 
have  the  question  passed  upon  by  the 
court,  before  entering  upon  the  trial." 
It  is  evident  from  the  decisions  that  a 
party  who  has  knowledge  must  dili- 
gently and  reasonably  use  it;  not  simply 
that  be  has  ;i  right  to  do  so,  but  is 
under  obligation  so  to  do. 


528 


ERROR   IN    JUDICIAL  PROCEEDINGS. 


lenged  was  disqualified,1  but,  of  course,  this  presumption  may 
be  rebutted  in  the  proper  case.2  It  ma)'  be  further  said,  some- 
what by  way  of  preface,  that  where  fixed  rules,  declared  by 
statute  or  established  by  the  unwritten  law,  declare  what  course 
shall  be  pursued,  an  abuse  of  discretion  exists  if  such  rules  are 
departed  from  in  an  essential  particular  and  to  the  substantial 
injury  of  the  complaining  party.3  The  court  may,  as  a  general 
rule,  excuse  a  juror,  although  parties  object,  where  the  juror 
asks  it,  and  his  excuse  is  demanded  by  illness,  the  public  good, 
or,  in  rare  cases,  where  urgent  private  interests  of  the  juror 
demand  that  he  be  released.  Where  a  juror  is  excused  by  the 
court,  no  error  can  be  well  assigned  unless  it  appears  that  there 
was  an  abuse  of  discretion  resulting  in  injury  to  the  complaining 
party.4     An  examination  of  jurors  upon  their  voir  dire  is  allow- 


1  City  of  Goshen  v.  England,  119  Ind. 
368,372;  Carpenter  v.  Dame,  10  Ind. 
125;  Heaston  v.  Cincinnati,  etc.,  Co., 
16  Ind.  275,  279. 

2  It  may  be  rebutted  by  a  clear  and 
full  showing  by  the  record  that  no  cause 
existed.  So  where  a  juror  is  accepted, 
the  presumption  of  knowledge  and  lack 
of  diligence  may  be  rebutted.  Brown 
v.  State,  60  Miss.  4^7;  McClure  v. 
State,  1  Yerg.  206;  Meyer  v.  State,  19 
Ark.  156.  Many  of  the  courts  hold 
that  unless  it  affirmatively  appears  that 
an  unjust  verdict  was  rendered,  the  fact 
that  a  disqualified  person  was  on  the 
jury  will  not  authorize  a  reversal.  King 
:.  Hunt,4B.&  A.  430;  State  v.  Madoil, 
12  Fla.  151;  State  v.  Turner,  6  La.  Ann. 
309;  McLcllan  v.  Crofton,  6  Me.  307; 
I'resbury  v.  Commonwealth,  9  Dana, 
203;  Curan'sCase,  7  Gratt.  619;  Green- 
up v.  Stoker,  S  111.  202.  But  see  Block 
v.  State,  100  Ind.  357.  It  is  firmly  set- 
tled that  applications  for  a  new  trial 
upon  the  ground  that  a  juror  was  dis- 
qualified are  received  with  great  dis- 
favor, and  the  evidence  adduced  in  sup- 
port of  such  applications  is  minutely 
scrutinized  and  cautiously  received. 
Com.   v.  Flanagan.  7  Watts.   &   S.  415, 


422;  Moore  V.  Philadelphia  Bank.  5 
Sergt.  &  R.  41,  42;  Miami,  etc.,  Co.  v. 
Wesler,  47  Ind.  65;  Clem  v.  State,  33 
Ind.  41S;  Harding  v.  Whitney,  40  Ind. 
379;  Holloway  v.  State,  53  Ind.  554; 
State  v.  Bancroft,  22  Kan.  170;  Epps  v. 
State,  19  Ga.  102;  Spies  v.  People,  122 
111.  1,12  N.  E.  Rep.  S65,  867;  Hughes 
v.  People,  116  111.  330,  337.  Where  a 
challenge  is  overruled  the  general  rule 
is  that  the  record  must  show  the  specific 
grounds  stated,  and  their  sufficiency. 
State  v.  Munchrath,  7S  Iowa,  26S,  43 
N.  W.  Rep.  211;  People  v.  Hopt,  4 
Utah,  247,9  Pac.  Rep.  407.  It  is  within 
the  discretion  of  the  court  to  withdraw 
a  juror  shown  to  be  disqualified.  Ochs 
v.  People,  124  III.399;  People  v.  Barker, 
60  Mich.  277.  S.  C.  1  Am.  St.  Rep.  501. 

3  Bates  v.  Bates,  19  Texas,  122;  Cross 
v.  Moulton,  15  Johns.  469. 

4  State  v.  Whitman,  14  Rich.  L.  (So. 
Car.)  113;  State  v.  Breaux,  32  La.  Ann. 
222;  Babcock  v.  People,  13  Col.  515.  22 
Pac.  Rep.  817;  Ellis  v.  State,  25  Fla. 
702.  6  So.  Rep.  76S;  Hawes  v.  State,  S8 
Ala.  37,7  So.  Rep.  302;  Commonwealth 
v.  Livermore,  4  Gray,  18;  Atlas  Mining 
Co.  f.  Johnston,  23  Mich.  36;  O'Brien 
v.  Vulcan  Iron  Works,  7  Mo.  App.  257; 


EXERCISE   OF    DISCRETIONARY    POWER. 


able  for  two  purposes,  to  determine  whether  there  is  cause  for  a 
challenge  and  whether  it  is  expedient  to  peremptorily  chal- 
lenge,1 and,  while  the  court  has  a  wide  discretion  as  to  what 
questions  may  be  asked,  it  is  an  abuse  of  discretion  to  unreason- 
ably restrict  the  examination.2  It  is  not  possible  to  lay  down 
any  general  rule  upon  the  subject,  although  it  is  safe  to  say, 
that  so  long  as  the  court  does  not  trench  upon  the  right  to  ask 
such  questions  as  are  necessary  to  show  grounds  for  challenge 
for  cause,  or  to  elicit  information  reasonably  necessary  to  de- 
termine whether  it  is  expedient  to  interpose  a  peremptory  chal- 
lenge,3 there  is  no  abuse  of  discretion,  nor  is  it  going  too  far  to 
say    that    unnecessarily   tedious    or    prolix    examinations    are 


Dodge  v.  People,  4  Neb.  220;  Maner 
V.  State,  8  Tex.  App.  361;  Ware  V. 
Ware,  8  Me.  42;  Watson  v.  State,  63 
Ind.  548;  State  v.  Dickson,  6  Kan.  209. 
A-  to  the  right  to  call  a  new  panel. 
Pierce  v.  State,  67  Ind.  354;  Evarts  v. 
State,  4S  Ind.  42 2 ;  Winsett  v.  State,  57 
Ind.  26;  Thornton  on  Juries  and  In- 
structions, p.  69,  §  S3.  Of  the  discre- 
tionary power  to  call  special  juries  sev- 
eral cases  treat.  Heyl  v.  State.  109 
Ind.  5S9,  591;  Deig  v.  Morehead,  no 
Ind.  451,  457;  City  of  Logansport  v. 
Dykeman,  116  Ind.  15,  22;  Keyes  v. 
State,  122  Ind.  527.  529.  See  Sage  v. 
State,  127  Ind.  15,  as  to  irregularity  in 
selecting  grand  jurors,  and,  also,  Cooper 


v.  State,  120  Ind. 


State  v.  Mellor, 


13  R.  I.  666;   Commonwealth  v.  Brown, 
147  Mass.  585. 

1  Pearcy  v.  Michigan,  etc.,  Co.,  in 
Ind.  59,  S.  C.  60  Am.  Rep.  673.  See, 
generally,  Melson  7'.  Dickson,  63  Ga. 
682,  S.  C.  36  Am.  Rep.  12S;  Lamphier 
v.  State.  70  Ind.  317;  Bradbury  v.  Cony, 
62  Me.  223,  16  Am.  Rep.  449;  Ensign  v. 
Harney,  15  Neb.  330,  48  Am.  Rep.  344; 
Diveny  v.  City  of  Elmira,  51  N  V.  506. 
For  definition  o\  peremptory  challenge, 
see  Gulf,  etc..  Co.  v.  Keith,  74  Tex 
11  S.  W.  Rep.  1 1 17.  In  order  to  pre- 
sent a  question  upon  a  ruling  denying 
.a  challenge  for  cause  the  record  should 

34 


show  that  it  contains  the  examination 
of  the  juror  in  full.  Indianapolis,  etc., 
Co.  v.  Pitzer,  109  Ind.  179;  Johnson  v. 
Holliday,  79  Ind.  151. 

2  Watson  v. Whitney,  23  Cal.375.  It 
is  generally  held  that  it  is  not  an  abuse 
of  discretion  to  refuse  to  permit  ques- 
tions to  be  put  to  a  juror  which  tend  to 
degrade  him.  Hudson  v.  State,  1  Blackf. 
317;  State  V.  Mann,  S3  Mo.  5S9;  Me- 
chanics Bank  v.  Smith,  19  Johns.  115; 
Spron  v.  Commonwealth,  2  Va.  Cases, 
375;  Burti'.  Panjaud,99  U.  S.  180.  But 
this  general  rule  must  he  subject  to  ex- 
ceptions. It  is  certainly  competent  to 
make  the  proper  inquiry  when  it  may 
bring  out  facts  showing  a  connection 
with  some  society  or  association  which, 
may  make  the  juror  partial  to  the  one 
side,  or  hostile  to  the  other.  State  v. 
Mann,  S3  Mo.  589;  Missouri,  etc.,  C 
Munkers,  11  Kan.  22^:  Lann  v.  People, 
6S  111.  303.  But  see  State  v.  Wilson,  S 
Iowa,  407;  Boyle  v.  People,  4  Col.  176; 
United   States  v.  Borger,  7  Fed.  Rep. 

193- 

'Jones  v.  State,  2  Blackf.  475.  47S; 
People  v.  Soy,  57  Cal.  102;  People  v. 
Honeyman,  3  Den.  121,  124;  Freeman 
V.  People,  1  Den.  o:  Smith  V.  Floyd. 
iS  Barb.  522;  State  v,  Hamilton.  27  La. 
Ann.  400. 


530 


ERROR   IN  JUDICIAL  PROCEEDINGS. 


looked  upon  with  disfavor,  and  that  it  is  always  within  the  dis- 
cretion of  the  court  to  reasonably  and  fairly  limit  the  examina- 
tion on  the  voir  dire. 

§  614.  Decisions  upon  the  Qualifications  of  Jurors — In  determin- 
ing questions  affecting  the  competency  of  persons  called  as 
jurors  a  discretionary  power  is  exercised  by  the  court,1  but  it  is 
not  so  comprehensive  as  many  other  discretionary  powers.  It 
is  not,  however,  within  the  power  of  the  court  to  accept  an  in- 
competent person  as  a  juror  where  the  statute  or  the  established 
rules  of  law  declare  him  to  be  disqualified,2  for,  where  there  are 
such  statutory  or  common  law  rules,  there  is,  in  strict  accuracy, 
no  discretion.  The  duty  of  the  court  where  such  rules  exist  is 
imperative.  But  in  determining  whether  the  answers  of  the 
person  called  into  the  jury  box  bring  him  under  these  rules  or 
exclude  him  from  their  operation,3  the  court  does  exercise  a 
wide  discretion.     The  court  does  not,  in  exercising  its  discre- 


1  Epps  v.  State,  102  Ind.  539;  Walker 
v.  State,  102  Ind.  502;  Stephenson  v. 
State,  no  Ind.  358;  Stout  v.  State,  go 
Ind.  1;  Babcock  v.  People,  13  Col.  515; 
22  Pac.  Rep.  817;  Vann  v.  State,  S3  Ga. 
44,9  S.  E.  Rep.  945;  Butler  v.  Glens 
Falls  etc.,  Co.,  121  N.  Y.  112,  24  N.  E. 
Rep.  1S7;  State  v.  Wyse,  32  So.  Car. 
45;  People  v.  Hoyt,  4  Utah,  247,  9  Pac. 
Rep.  407;  State  v.  Claire,  41  La  Ann. 
1067;  Clarke  v.  State, 87  Ala.  71,  6  So. 
Rep.  36S;  Grace  v.  Dempsey,  75  Wis. 
313,  43  S.  W.  Rep.  1 127;  Territory  v. 
Pratt,  6  Dak.  483,  43  N.  W.  Rep.  711; 
Fogarty  v.  State,  80  Ga.  450;  O'Brien 
v.  Commonwealth  (Ky.),  12  S.W.  Rep. 

47i- 

1  Trullinger  v.  Webb,  3  Ind.  198;  La 
Fayette,  etc.,  Co.  v.  New  Albany,  etc., 
R.  Co.,  13  Ind.  90;  Fleming  v.  State, 
11  Ind.  234;  Baker  v.  Mine,  54  Ind. 
542;  Stoots  v.  State,  10S  Ind.  415; 
Block  v.  State,  100  Ind.  357;  Rhodes  v. 
State,  128  Ind.  189,  27  N.  E.  Rep.  866,  33 
Cent.  L.  J.  293;  Lamphier  v.  State,  70 
Ind.  317.     See,  generally,  Noe  v.  State, 


92  Ind.  92;  Shields  v.  State,  95  Ind. 
299;  Hearne  v.  City  of  Greensburgh,  51 
Ind.  119;  Diveny  v.  City  of  Elmira, 
51  N.  Y.  506.  As-  to  disqualification 
by  knowledge  obtained  from  rumors  or 
newspaper  reports,  see  Dugle  v.  State, 
100  Ind.  259;  Cluck  v.  State,  40  Ind. 
263;  Fahnestock  v.  State,  23  Ind.  231. 
As  to  prejudice  from  opinions  against 
particular  business,  see  Elliott  v.  State, 
73  Ind.  10;  Shields  v.  State,  95  Ind.  299, 
301.  But  compare,  Swigart  v.  State, 
67  Ind.  2S7,  Reiser  v.  Lines,  57  Ind. 
431.  The  competency  of  a  person  called 
as  a  juror  is  not  to  be  determined  from 
isolated  or  fragmentary  statements;  his 
entire  examination  should  be  consid- 
ered.    Butler  v.  State,  97  Ind.  378. 

5  Stoots  v.  State,  10S  Ind.  415; 
Walker  v.  State,  102  Ind.  502;  Elliott 
v.  State,  73  Ind.  10.  See,  generally, 
Christie  v.  State,  44  Ind.  408;  Patter- 
son v.  State,  70  Ind.  341;  Pickens  v. 
Hobbs,  42  Ind.  270;  Hudson  v.  State, 
1  Blackf.  317;  Jones  v.  State,  2  Blackf. 
475- 


EXERCISE  OF    DISCRETIONARY    POWER. 


53] 


tionary  functions,  decide  what  qualifications  the  juror  shall 
possess, — for  that  is  matter  of  established  law, — but  it  does,  in 
most  instances,  exercise  such  functions  in  determining  whether 
the  person  called  into  the  box  possesses  the  qualifications  re- 
quired by  the  law.  The  decision  of  the  court  where  an  issue 
of  fact  is  made  as  to  the  competency  of  a  juror  is,  in  general, 
conclusive,1  and,  it  may  not  be  out  of  place  to  add,  the  same 
effect  is  ordinarily  assigned  to  the  decision  of  the  trial  court 
where  misconduct  is  charged  against  a  juror  and  the  decision 
of  the  question  is  made  upon  oral  evidence  or  upon  affidavits 
and  counter  affidavits.2 


3  615.  Mode  of  Trial — It  is,  of  course,  not  legally  possible  for 
a  judge  or  chancellor  to  delegate  the  judicial  powers  devolved 
upon  him  by  law,3  nor  can  he  completely  and  absolutely  abdi- 


1  Pickens  v.  Hobbs,42  Ind.270;  Brad- 
ford v.  State,  15  Ind.  347;  Miami  Val- 
ley Furniture  Co.  v.  Wesler,  47  Ind. 65; 
Coryell  v.  Stone,  62  Ind.  307;  Holloway 
v.  State,  53  Ind.  554;  Whistler  p.Teague, 
66  Ind.  565;  Lockhart  r».  State,  92  Ind. 
452.  There  is  no  right  to  a  peremptory 
challenge  where  a  struck  jury  is  called 
under  the  statute,  so  that  an  examina- 
tion should  be  confined  to  ascertaining 
whether  there  is  cause  for  challenge. 
May  v.  Hoover,  112  Ind.  455.  A  party 
can  not,  in  any  instance,  assume  the 
facts  of  the  particular  case  and  under 
guise  of  examining  as  to  competency  of 
a  juror  obtain  an  opinion  from  him. 
Woollen*  f.  Wire,  no  Ind.  25:.  There 
is  some  conflict  in  our  decisions  upon 
the  question  as  to  the  effect  of  the  re- 
jection of  a  competent  juror  where,  not- 
withstanding such  rejection,  an  impar- 
tial jury  was  secured.  We  think  that 
the  true  rule  i>  thai  the  error  in  such  a 
ruling  is  not  fatal  for  the  reason  that  no 
harm  was  done  the  party.  Coryell  V. 
Stone,  62  Ind.  307,  citing  Carpenter  :•. 
Dame,  10  Ind.  125,  and  Ileaston  :•.  Cin- 
cinnati, etc.,  Co.,  16  Ind.  275.  In  De 
Pew  v.  Robinson  95  Ind.   109,  in,  the 


court,  in  speaking  of  the  rejection  of  a 
juror,  said:  "This  was  a  matter  very 
much  in  the  discretion  of  the  court. 
Besides  it  does  not  appear  that  the  ap- 
pellant was  injured  and  therefore  this 
ruling  does  not  constitute  an  avail- 
able error  if  erroneous."  Stephenson 
v.  State,  no  Ind.  35S;  Hopt  v.  Utah,  120 
U.  S.  430,  438;  Bibb  v.  Reid,  3  Ala.  SS; 
People  v.  Arceo,  32  Cal.  40;  Grand 
Rapids,  etc.,  Co.  v.  Jarvis.  30  Mich.  30S; 
Watson  v.  State,  63  Ind.  54S;  United 
States  v.  Neverson,  1  Mackey,  152. 

2  Stevens  v.  Stevens.  127  Ind.  560,  56S; 

Dill  v.  Lawrence,  109  Ind.  504;  Doles 
v.  State,  97  Ind.  555;  Long  v.  State.  95 
Ind.  481;  Weaver  v.  State,  S3  Ind.  542; 
Luck  v.  State,  96  Ind.  16;  Shield-  v. 
State,  95  Ind.  299;  Catterlin  v.  City  of 
Frankfort,  87  Ind,  45;  Elliott  V.  State. 
75  Ind.  10;  Hodges  v.  Bales,  102  Ind. 
494;  Hamm  v.  Romine,  98  Ind.  77. 

3  Vandercook  v.  Williams.  100  Ind. 
345;  Wilkins  V.  State,  113  Ind.  514. 
Neither  a  clerk  nor  an  attorney,  not 
duly  appointed  special  judge,  can  re- 
ceive a  verdict.  Britton  v.  Fox,  39  Ind. 
369;  McClure  v.  State.  77  Ind,  2s;. 
State  v.  Jefferson,  66  N.  C.  309.     See, 


532  ERROR   IN  JUDICIAL  PROCEEDINGS. 

cate  or  surrender  his  judicial  functions  ;  neither  can  he  compel 
a  party,  who  is  in  a  position  to  enforce  his  rights,  to  submit  to 
a  mode  of  trial  dillerent  from  that  prescribed  by  law.  He  can 
not,  for  instance,  deprive  a  part}'  of  a  jury  trial  where  the  law 
awards  it  to  him,1  but  in  chancery  cases  he  may  exercise  a  con- 
siderable discretion  in  designating  the  mode  of  trial.  He  may. 
for  instance,  refer  matters  to  a  master  commissioner,2  and.  in 
some  cases,  may,  in  his  discretion,  submit  particular  questions 
of  fact  to  a  jury.3  Where  a  party  demands  a  trial  by  jury  and 
the  court  grants  his  request  he  can  not  be  heard  to  aver  that 
the  wrong  mode  was  adopted,  although  the  case  was  one  for 
the  court  and  not  for  a  jury.4  While  it  is  the  right  of  a  party 
who  duly  requests  it  to  have  a  suit  in  equity  tried  by  the  court,5 
still,  if  he  acquiesces  in  the  trial  bv  jury,"  or  fails  to  request  a 
trial  by  the  court,7  he  can  not  successfully  complain  on  appeal. 
But  where  the  right  to  a  trial  by  the  court  is  secured  by  law, 
as  it  is  in  chancery  cases,  the  court  can  not,  where  objection  is 
duly  made,  submit  a  cause  entirely  to  the  decision  of  a  jury, 
although  it  is  discretionary  with  it  to  accept  or  reject  the  de 
cision  of  the  jury  upon  the  facts.     This  is  so,  because  the  court 

generally,   Van   Slyke  v.  Trempealeau,  the  court,  see  Rogers  v.  Union  Central, 

etc.,  Co.,  39  Wis.  390;   Hall   v.  Marks,  etc.,  Co.,  in  Ind.  343;  Brown  v.  Russell, 

34  111.  35S;  Missouri  River  Tel.  Co.  v.  105  Ind.  46;   Stix  v.  Sadler,  109  Ind. 254. 
First  National  Bank,  74  111.  217.  B  Lane   v.  Schlemmer,  114  Ind.  296; 

1  Lake  v.  Lake,  99  Ind.  339.  Carmichael  v.  Adams, 91  Ind.  526;  Mc- 

2  Fitzgerald  v.  Hayward,  50  M0.516;  Bride  v.  Stradley,  103  Ind.  461;;  Miller 
Martin  v.  Hall,  26  Mo.  385;  Dooly  v.  v.  Evansville  National  Bank,  99  Ind. 
Barker,  2  Mo.  App.  325;  Youngt/.Led-  272;  Ketcham  v.  Brazil,  etc.,  Co.,  SS 
rick,  14  Kan.  92.  But  in  these  cases  there  Ind.  515:  Hendricks  v.  Frank,  S6  Ind. 
is  no  delegation  of  judicial  power,  since  27S;  Evans  v.  Nealis,  87  Ind.  262;  Tag- 
these  ministers  of  the  court  do  not  de-  gart  v.  Tevanny,  1  Ind.  App.  Ct.  339. 
cide  the  case;  the  power  of  final  and  ef-  See,  also,  authorities  cited  in  preceding 
fective  decision  remains  in  the  court.  notes. 

3  Lake  Erie,  etc.,  Co.  v.  Griffin,  92  6  Ikerd  v.  Beavers,  106  Ind.  483;  Carr 
Ind.  4S7;  Pence  v.  Garrison,  93  Ind.  v.  Hasket,  no  Ind.  152;  Sprague  v. 
345;    Farmers'  Bank  v.  Butterfield,  100  Pritchard,  10S  Ind.  491. 

Ind.  229;  Israel  v.  Jackson,  93  Ind.  543.  7Jarboe  v.  Severin,  112  Ind.572.     He 

4  Dawson  v.  Shirk,  102  Ind.  1S4.  must,  as  elsewhere  said,  reserve  an  ex- 
Tlie  ruling  in  this  case  is  well  sup-  ception  and  specify  the  ruling  in  the 
ported  by  the  established  principle  that  motion  for  a  new  trial.  Huffmond  v. 
parties  will  be  held  to  trial  court  theo-  Bence,  12S  Ind.  131,  137. 

ric :s.     As  to  what  cases  are  triable  by 


EXERCISE  OF  DISCRETIONARY    POWER. 


must  retain  and  exercise  the  power  of  giving  the  ultimate  and 
decisive  judgment. 

§  616.  Condnct  of  the  Trial — The  time  at  which  the  cause  shall 
be  tried  may,  as  a  general  rule,  be  fixed  by  the  court,  subject, 
of  course,  to  the  provisions  of  the  law  allowing  time  for  the 
formation  of  issues.1  Courts  may,  so  long  as  they  keep  within 
the  limits  of  discretion,  establish  reasonable  rules  of  trial  pro- 
cedure,2 but  they  have  no  power  to  adopt  a  rule  which  will  de- 
prive a  party  of  a  clear  legal  right.3  The  trial  court  may,  as  a 
general  rule,  determine  how  long  a  trial  shall  be  protracted, 
and  unless  there  are  some  peculiar  circumstances  palpably 
showing  that  the  hours  determined  upon  by  the  court  were  so 
manifestly  unreasonable  as  to  constitute  an  abuse  of  discretion, 
its  action  will  not  be  revised  on  appeal.1  It  is  affirmed  in 
many  cases  that  it  is  within  the  discretion  of  the  trial  court  to 


1  Indianapolis,  etc.,  Co.  v.  Caven.  53 
Ind.  258;  Foster  v.  Ilinson,  76  la.  714, 
39  X.  W.  Rep.  6S2;  State  v.  Maher,  74 
Iowa,  77,  37  N.  W.  Rep.  2.  See,  gen- 
erally, Philadelphia,  etc.,  Co.  r.Stimp- 
son,  14  Pet.  44S;  Turner  v.  Yates,  16 
How.  (U.  S.),  114. 

2  In  Krutz  v.  Howard,  70  Ind.  174, 
176,  it  was  said:  "Courts  have  the 
power,  and  it  is  their  duty,  to  adopt 
rules  for  conducting  business  therein 
not  repugnant  to  the  laws  of  the  state.'' 
Rules  of  trial  courts  were  upheld  in 
Truitt  -•.  Truitt,  38  Ind.  16;  Vail  v. 
McKernan,  21  Ind.  421;  Reitz  v.  State, 
33  Ind.  187;  Redman  v.  State,  2S  Ind. 
205;  Galloway  v.  State,  29  Ind.  442;  Jef- 
fersonville,  etc.,  Co.  v.  Avery,  31  Ind. 
277;  Ollam  v.  Shaw.  27  Ind.  3SS.  See, 
generally,  Langsdale  :•.  Woollen,  99  Ind. 
^7;;  Jones  v.  Rittenhouse,  S7  [nd.348; 
Thompson  v.  Pershing,  S6  Ind.  303; 
Hoke  v.  Applegate,  92  Ind.  470;  Moore 
v.  Sargeant,  112  Ind.  484. 

5  Krutz  v.  Griffith,  68  Ind.  444;  Krutz 
v.  Howard.  70  Ind.  174;  Laselle  v. 
Wells,    17   Ind.   33;  Jeffersonville,  etc.. 


Co.  7'.  Hendricks,  41  Ind.  4S;  Shoe- 
maker v.  Smith,  74  Ind.  71.  The  court, 
in  speaking  of  a  trial  court  rule  in  the 
case  of  Crotty  v.  Wyatt,  3  Bradw.  [11. 
A  pp.  Ct.),  38S,  399,  said:  "As  to  this 
rule  we  know  nothing,  as  it  is  not  found 
in  the  record.  Still,  the  court  by  virtue 
of  the  power  conferred  to  establish 
rules  of  practice  to  facilitate  the  dis- 
patch of  business,  could  not  by  such 
rules  deprive  a  party  of  a  well  estab- 
lished legal  right."  Valid  rules  of  pro- 
cedure are,  in  a  sense,  the  law.  and 
parties  must  obey  them.  Rout  :■.  Ninde, 
in  Ind.  597.  Judicial  notice  is  not, 
however,  taken  by  the  appellate  tri- 
bunal of  the  special  rules  adopted  by 
trial  courts.  Knarr  ;•.  Conaway,  42  Ind. 
260;  Rout  :■.  Ninde.  m  Ind.  597;  San- 
don  v.  Proctor,  7  B.  &  C.  Soo.  But  an 
excuse  for  not  complying  with  a  rule 
may  be  shown.  Bernhamer  v.  State, 
123  End.  577;  Moulder  :•.  Kempff.  115 
Ind.  459,  463.  A  clear  showing  must 
be  made.  Riggenberg  :  .  Hartman,  102 
Ind. 387. 
4  Wartena  v.  State.  105  Ind.  : 


534 


ERROR   IN  JUDICIAL  PROCEEDINGS. 


consolidate  for  trial  several  actions  where  the}-  arise  out  of  the 
same  subject,1  hut  to  us  it  seems  that  this  doctrine  is  one  to  be 
accepted  with  qualification  and  applied  with  scrupulous  care. 
In  civil  cases  the  limitation  upon  the  length  of  time  to  be 
allowed  for  argument  is  a  matter  resting  to  a  great  extent  in 
discretion  of  the  trial  court.2  But  if  the  nisi  frius  court  should 
unreasonably  limit  the  time  of  argument  so  as  to  unjustly 
abridge  the  right  of  a  party  to  be  heard  in  argument  by  coun- 
sel, it  would  be  regarded  as  an  abuse  of  discretion.3  It  has 
been  held,  and  with  reason,  that,  within  the  scope  of  a  reas- 
onable discretion,  the  court  may  limit  the  number  of  counsel 
that  shall  be  heard  in  argument.4 

§  617.  Control  of  the  Delivery  of  Evidence — The  order  in  which 
evidence  shall  be  introduced  is  a  matter  largely  within  the  dis- 
cretion of  the  trial  court.5     As  a  general  rule  courts  permit  par- 


Speaking  of  the  right  of  the  trial  court 
to  control  its  sittings  it  was  said  in  the 
case  cited:  "It  is  undoubtedly  the 
province  of  the  nisi  prius  courts,  in  the 
exercise  of  a  sound  discretion,  to  regu- 
late the  course  <>f  business  during  the 
ress  of  trials.  I  ncluded  in  this  is  the 
right,  during  the  term,  in  a  proper  way, 
to  control  its  own  sittings."  In  McGow- 
iii  v.  Campbell,  28  Kan.  25,  30,  it  was 
held  an  abuse  of  discretion  to  continue  in 
session  during  an  entire  night.  It  may 
be  said  that  the  intercourse  between 
the  bench  and  the  baris  1  matter  largely 
for  regulation  by  the  trial  court.  Long 
V.  Mate,  12  Ga.  293,  330. 

1  City  of  Springfield  v.  Sleeper,  115 
Mass.  587;    Kimball    -■.   Thompson,   4 
Cush.441;  Commonwealth  u.Jami 
Mass.  438;  Commonwealth  v.  Powers, 
I'M  Mas^.  353. 

*  Baldwin  v.  Burrows,  95  I  nil.  81; 
Cory  v.  Sileox,  5  Ind.  370;  Priddy  v. 
Dodd,  4  Intl.  84;  Rosser  v.  McColly,  9 
Ind.  587;  Lynch  v.  State.  9  Ind.  541; 
Musselman  v.  Pratt,  44  Ind.  126;  Tice 
v.  Hannibal,  etc.,  Co.  35  Mo. 416;  Hob- 


bins  v.  Oswalt,  20  Ark.  619,  624;  Ben- 
son v.  Mahoney,  6  Baxt.  304,  307;  Fre- 
ligh  v.  Ames,  31  Mo. 253;  Hart  v.  State, 
1  I  Wh.  572;  People  v.  Kelly,  94  X.  Y. 
520;  Williams  z>.  Commonwealth,  82 
K  v.  I 

3  Brooks  v.  Perry,  23  Ark.  32;  Wea- 
ver v.  State.  24  Ohio  St.  584;  State  v. 
Collins,  70  N.C.  241;  Sullivan:'.  State, 
46  N.J.  L.  446;  People  v.  Keenan,  13 
Cal.  581,  5S4;  White  v.  People,  90  [11. 
1  17;  Dille  V.  State,  34  Ohio  St.  (.17. 
Hunt  v.  State,  49  Ga.  255.  It"  further 
time  than  that  designated  by  the  court  is 
desired,  the  appropriate  request  should 
be  preferred,  an  exception  reserved  to 
the  refusal,  and  an  opportunity  for  re- 
view presented  by  a  proper  specification 
in  the  motion  for  a  new  trial.  Redman 
v.  State,  28  I  nil.  205;  Baldwin  v.  Bur- 
rows, 95  Ind.  81;  Williams  x\  Com- 
monwealth, 82  Ky.  640;  Kizer  v.  State, 
12  Lea.  564. 

4  Sodousky  v.  McGee,  4  J.  J.  Marsh. 
207;  United  States  v.  Mingo.  2  Curtis 
C.  C.  Rep.  1. 

5  Western    Union    Telegraph    Co.  v. 


EXERCISE  OF   DISCRETIONARY   POWER. 


ties  to  introduce  evidence  in  the  order  they  choose,'  but  this  is 
a  matter  of  favor  and  not  of  right.-  The  strict  rule  is  that  the 
plaintiff  can  not  introduce  evidence  in  reply  that  should  prop- 
erly be  given  in  chief,  and  if  the  court  holds  a  party  to  this  rule 
he  can  not,  except  in  an  unusual  and  peculiar  case,  success- 
fully complain.'5  If,  however,  the  trial  court  deems  it  proper  to 
relay  the  strict  rule  and  permit  evidence  in  chief  to  be  given 
after  the  adverse  party  has  rested,  there  is,  ordinarily,  no  such 
abuse  of  discretion  as  constitutes  available  error.4  Nor  is  there 
necessarily  an  abuse  of  discretion  in  refusing  to  permit  a  party 
to  recall  a  witness  who  has  been  dismissed,5  although  it  is 
within  the  rightful  discretion  of  the  court  to  permit  such  a  wit- 
ness to  be  recalled  and  re-examined.6  It  is  not  necessarily, 
nor,  indeed,  ordinarily,  an  abuse  of  discretion  to  admit  evidence 
after  the  argument  has  closed.7 


Buskirk,  107  Ind.  549;  Noblesville,  etc., 
Co.  v.  (i;iihi',  76  Ind.  1  _}  J  ;  Nye  V.  Lowry, 
82  Ind  316;  Pittsburgh, etc., Co. v. Noel, 
77  Ind  no;  Case  v.  Grim,  77  Ind.  565; 
Blake  v.  Powell,  26  Kan.  320;  Agate  v. 
Morrison,  S4  N.  Y.  672;  Goodman  v. 
Kennedy,  10  Neb.  270;  Walker  v. 
Walker,  14  Ga.  242;  People  v.  Durfee, 
62  Mich.   (.87. 

'  Burns  v.  Harris,  66  Ind.  536;  Fow- 
ler v.  Hawkins,  17  Ind.  211;  Clawson 
v.  Lowry,  7  Blackf.  140;  Webb  v.  State, 
29  Ohio  St.  351;  Goss  V.  Turner.  21 
Vt.437. 

2  Ward  v.  Montgomery,  57  Ind.  276. 
The  court  may  hold  parties  tothestricl 
rules  of  evidence.  Woollen  v.  Wire, 
no  Ind.  251.  It  is  not,  however, so  far 
as  concerns  the  order  of  introducing 
evidence,  hound  to  do  so.  Kusler  v. 
Crofoot,  78  Ind.  597. 

3  Fitzpatrick  v.  Papa, 89  Ind.  1 7;  Nave 
v.  Flack,  90  Ind.  205;  Macullar  r.W.ill, 
6  Gray,  507;  Hathaway  v.  Hemingway, 
20  Conn.  190,  195;  Gilpin  v.  Consequa, 
3  Wash.  C.  C.  [84;  Braydon  v.  Goul- 
man,  1  T.  B.Monr.  (Ky.)  [15;  Graham 
-■.  Davis,  4  Ohio  St.  362;  York  v.  Pease, 
2  Gray, 282;    Ashworth  v.  Kittridge,  12 


Cush.  193;  Brown  v. Marshall,  120  Ind. 
323;  Shea's  Appeal,  121  Pa.  St.  302.  15 
Atl.  Rep.  629;  Rhodes  v.  Green,  36  Ind. 
7;    Williams  v.  Allen,  40  Ind.  295. 

4  Stewart  v.  Smith,  in  Ind.  $2f>; 
Morris  v.  State,  94  Ind.  505;  Mayfield 
v.  State,  no  Ind.  591;  McKinnev  v. 
Jones,  55  Wis.  39;  Caldwell  v.  New 
Jersey,  etc.,  Co.,  47  N.  Y.  2S2;  John- 
ston v.  Mason.  27  Mo.  511;  Larman  v. 
Huey,  13  B.  Monr.436;  Commonwealth 
v.  Ricketson,  5  Metcf.(Mass.)  412;  Dar- 
land  :•.  Rosencrans,  56  Iowa,  122:  Mc- 
Dowell v.  Crawford.  11  Gratt.  377,408. 

5  Morehouse  v.  Heath,  99  Ind. 
The  proper  practice  is  to  obtain  leave  to 
recall  the  witness:  a  party  can  not.  as 
of  strict  right,  recall  a  witness  once  ex- 
amined. Nixon  v.  Board,  m  Ind.  137; 
Beaulieu  v.  Parsons,  2  Minn.  37;  Gi- 
raull  v.  Adams,  61  Md.  1,  9. 

6  Hollingsworth  v.  State,  79  Ga.  605, 
I  S.  E.  Rep.  560;  Fowler  w.  Strawberry 
Hill.  74  Iowa.  (44.  38  X.  W.  Rep,  521; 
Gulf.  etc..  Co.  r.  Pool,  70  Texas,  713; 
Swift  v.  Ratlitf.  74  Ind.  426;  Riley  v. 
Suite,  SS  Ala.  193,  7  So.  Rep.  140. 

'  Breedlove  :c.  Bundy,  96  Ind.  319; 
Watt   v.  Alvord,  25  Ind.  533;  Curm  v. 


536  ERROR  IX  JUDICIAL  PROCEEDINGS. 

§  618.  Examination  of  Witnesses — In  the  matter  of  the  exam- 
ination of  witnesses  the  trial  court  necessarily  exercises  a  com- 
prehensive discretion,  but  broad  as  its  discretion  is,  it  can  notr 
without  error,  deny  a  party  the  right  to  give  competent  evi- 
dence, nor  can  it,  without  a  departure  from  the  law,  admit  in- 
competent evidence  which  prejudices  a  party's  cause.1  There 
is,  however,  a  broad  field  outside  of  that  enclosed  by  fixed 
rules  of  law  over  which  the  discretionary  power  extends. 
Thus,  the  court  may  prevent  the  repetition  of  questions2  and 
answers,  yet  it  is  not  necessarily  an  abuse  of  discretion  to  per- 
mit a  duplication  or  repetition  of  evidence,3  although,  if  car- 
ried to  an  unreasonable  and  unjust  extent,  it  might  constitute 
an  abuse  of  the  discretion  lodged  in  the  court.  It  is  within  the 
discretion  of  the  court  to  limit  the  number  of  witnesses,  and 
unless  there  is  an  abuse  of  discretion  its  ruling  will  be  re- 
spected on  appeal.4  The  determination  of  the  limits  within 
which  a  cross-examination  shall  be  confined  is  largely  within 
the  discretion  of  the  trial  court,5  but  it  is  an  abuse  of  discretion 
to  so  fetter  and  shorten  the  cross-examination  as  to  deny  a 
party  a  fair  and  reasonable  opportunity  to  test  the  accuracy  of 

Rauh,  100  Ind.  247;  Colton  v.  Vander-  *  Union,  etc.,  R.  Co.  v.  Moore,  80  Ind. 

golgen,  87  Ind.  361;   Stipp   v.  Claman,  45S;    Jones   v.    Lindsay,  98   Ind.   218; 

123  Ind.  532;  Testard  v.  State,  26  Tex.  Mergentheim  v.    State,    107  Ind.    567; 

App.  260,  9  S.  W.  Rep.  8SS;  State  v.  Hilliard  v.  Beattie,  59  N.  II.  462;  Bays 

Powell,  40    La.   Ann.   241.     See,    also,  V.   Hunt,  60  la.  251;  Everett  v.  Union 

Fogarty  v.   State,  So  Ga.  450,  5  S.  E.  Pacific  R.  Co.,  59  la.  243.     In  the  case 

Rep.  782;   Hornsby  v.  South  Carolina  last  cited  the  decision  was  by  a  divided 

R.  Co.,  26  So.  Car.   187,  1   S.  E.  Rep.  court  and  it  is  doubtful  whether  the  rule 

594.     See  Beagles  v.  Sefton,  7  Ind.  496.  was  not  carried  beyond  its  just  limits. 

1  Conden  v.  Morningstar, 94  Ind.  150;  Riggs  v.  Sterling,  60  Mich.  643,  S.  C. 
Spencer  v.  Robbins,  106  Ind.  580;  State  1  Am.  St.  Rep.  554.  In  Hubble  v.  Os- 
v.  Thomas,  in  Ind.  515;  Campbell  v.  born,  31  Ind.  249,  it  was  held  an  abuse 
Hunt.  104  Ind.  210;  Rush  v.  Thompson,  of  discretion  to  limit  a  party  to  one 
112  Ind.  15S.  witness  upon  a  vital  point.     A  limita- 

2  Lockwood  t'.Rose,  12^  Ind.  ^SS,595;  tion  in  a  criminal  prosecution  to  two 
Clark  v.  Rhoads,  79  Ind.  342.  See, gen-  witnesses  was  held  erroneous  in  Gard- 
erally,    McSweeney    :•.    McMillen,    96  ner  v.  State,  4  Ind.  632. 

Ind.   29S;     Metzler   V.  Metzler,  99  Ind.  5  Rea  t\  Missouri,  17  Wall.  532;  Mul- 

5S4;    Watson  v.  Crowsore,  93  Ind.  220;  hollin  v.  Ward,  7  Ind.  646;   Ledford  v. 

ver  v.  Johnson,  79  Ind.  554.  Ledford,   95    Ind.   2S3;    Tothlinson   v. 

Adams  v.  Lee.  S:   Ind.  587;     Will-  Briles,  101  Ind.  538;  Pedigo  v.  Grimes, 

iamson  v.  Yingling, 93  Ind.  42;  Rhodes  113  Ind.  148;    Storm  v.  United  States, 

v.  Green.  36  End.  7.  94  U.  S.  76,  84;     Harris  v.  Central   R. 


EXERCISE  OF  DISCRETIONARY   POWER. 


537 


the  memory  of  the  witness  or  the  truth  of  his  testimony.1  It  is 
a  necessary  result  of  the  principle  that  the  mode  of  conducting 
the  examination  of  witnesses  is  chiefly  a  matter  of  discretion  ; 
that  it  should  be  discretionary  with  the  trial  court  to  permit  or 
to  deny  counsel  the  privilege  of  asking  leading  questions. 
Some  of  our  cases  indicate  that  it  is  error  to  permit  leading 
questions  to  be  asked,  but  the  rule  as  established  by  the  later 
cases  is  that  it  is  discretionary  with  the  court  to  permit  leading 
questions  to  be  asked,  and  that  the  appellate  tribunal  will  not 
interfere  unless  it  clearly  appears  that  there  was  an  abuse  of 
discretion  resulting  in  injury  to  the  complaining  party.2  This 
rule  is  sustained  by  the  overwhelming  weight  of  authority,3  and 
is  the  only  rule  defensible  upon  principle.  It  is  within  the  dis- 
cretion of  the  court  to  grant  or  deny   an   order  directing  the 


Co.,  78  Ga.  525.  3  S.  E.  Rep.  355;  Simon 
v.  Home  Ins.  Co.,  58  Mich.  27S;  De- 
merritt  v.  Randall,  1 16  Mass.  331 ;  City 
of  South  Bend  v.  Hardy,  9S  Ind.  577. 

1  II viand  v.  Milner,  99  Ind.  30S; 
Louisville,  etc.,  Co.  v.  Wood,  113  Ind. 
544;  Barnett  v.  Feary,  101  Ind.  95; 
Mitchell  v.  Tomlinson,  91  Ind.  167; 
Vogel  v.  Harris,  112  Ind.  494;  Brown 
v.  Owen,  94  Ind.  31;  Blake  v.  Powell, 
26  Kan.  320;  Coates  v.  Hopkins,  34  Mo. 
135;  Ferguson  v.  Rutherford,  7  Xcv. 
3S5;  Kalk  v.  Fielding,  50  Wis.  339; 
Bowers  v.  Mayo,  32  Minn.  241;  Schus- 
ter v.  Wingert,  30  Kan.  529;  Wallace 
v.  Taunton  Street  R.  Co.,  119  Mass. 
91;  Wachstetter  v.  State,  99  Ind.  290; 
Oliver  v.  Pate,  43  Ind.  132;  Kellogg  v. 
Nelson,  5  Wis.  125,  131.  It  is  evident 
that  it  is  safer  to  allow  a  wide  latitude 
to  cross-examining  counsel  than  to  re- 
strict them,  since  it  is  scarcely  possible 
to  permit  too  extended  an  examination, 
provided  of  course,  the  cross-examina- 
tion is  confined  to  the  subject  of  the  di- 
rect examination,  but  it  is  quite  easy  to 
unduly  abridge  the  important  right  of 
cross-examination. 

2  Goudy  v.  Werbe,   117  Ind.  154,  157; 


Sohn  v.  Jervis,  101  Ind.  578;  Blizzard 
v.  Applegate,  77  Ind.  516;  Weik  v. 
Pugh,  92  Ind.3S2;  Hunsinger  v.  Hofer, 
no  Ind.  390;  Board  of  Commissioners 
v.  Dombke,  94  Ind.  72;  Kyle  v.  Miller, 
10S  Ind.  90.  In  Hunsinger  v.  Hofer, 
supra,  the  court  said :  "  It  is  only  where 
there  is  a  very  clear  and  prejudicial 
abuse  of  discretion  in  permitting  lead- 
ing questions  to  be  asked  that  a  judg- 
ment will  be  reversed." 

3  Whiting  v.  Mississippi,  etc.,  Co. 
76  Wis.  592,  45  N.  W.  Rep.  672;  Ober- 
nalte  v.  Edgar,  2S  Neb.  70, 44  N. W.  Rep. 
82;  Parker  v.  Georgia,  etc.,  Co.,  83  Ga. 
539,  10  S.  E.  Rep.  233;  Smith  v.  Hays, 
23  111.  App.  Ct.  244;  Cade  v.  Hatcher, 
72  Ga.  359;  Lawson  v.  Glass,  6  Col.  134; 
Addison  v.  State.  4S  Ala.  47S;  Walker 
v.  Dunspaugh,  20  X.  Y.  170;  Donnell 
v.  Jones,  13  Ala.  490;  Hopkinson  v. 
Steel,  12  Vt.  5S2;  Farmers,  etc.,  Co.  v. 
Groff,  S7  Pa.  St.  124;  State  v.  Lull.  37 
Me.  246;  Moody  y.Rowell,  17  Pick. 490, 
49S.  Some  of  the  courts  hold  that 
there  can  be  no  abuse  ot  discretion  in 
allowing  leading  questions.  Bundy  v. 
Hyde,  50  N.  H.  116;  Steer  v.  Little.  44 
N.  II.  613. 


ERROR   IN  JUDICIAL   PROCEEDINGS. 


separation  of  witnesses.1  But  parties  have  a  right  to  be  pres- 
ent during  the  trial,  and,  although  they  may  be  witnesses,  it  is 
error  to  exclude  them  from  the  court  room.2  It  is  held  that  it 
is  proper  for  the  court,  where  the  presence  of  the  agent  of  one 
of  the  parties  is  essential  to  advise  counsel  so  as  to  enable  them 
to  properly  conduct  the  cause,  to  except  such  agent  from  the 
order  directing  a  separation  of  the  witnesses.3  There  is  not, 
at  all  events,  an  abuse  of  discretion  in  excepting  such  an  agent 
from  the  order  excluding  witnesses  from  the  court  room  while 
others  are  testifying. 

§  619.  Ordering  a  View — It  is  often  necessary,  to  enable  the 
jury  to  justly  apply  the  evidence,  that  they  should  see  and  in- 
spect the  place  where  an  event  or  transaction  described  by  the 
witnesses  occurred,  and  it  is  within  the  sound  discretion  of  the 
court  to  grant  or  deny  an  order  to  view  the  place.4  Where  the 
trial  court  does  not  abuse  its  discretion,  its  ruling  in  granting 
or  denying  an  inspection  and  viewr  will  not  be  reviewed  on  ap- 
peal.5    A  view  is  not,  according  to  our  decisions,  strictly  speak- 

1  Detrick   v.  McGlone,  46   Ind.  291;  *  Ryan  v.  Couch,  66  Ala.  244;     Betts 

Porter   v.    State,  2  Ind.  435;    Jackson  v.  State,  66  Ga.  508.     The  rule  stated 

v.  State,  14  Ind.  327;     Nelson  v.  State,  applies  to  a  counsel  who  is  also  a  wit- 

2  Swan.  (Tcnn.)  237;  Johnson  v.  State,  ness  and  it  is  proper  to  except  him  from 

2  Ind.  652;   Errissman  v,  Errissman,  25  the  order.     Powell   v.  State,  13  Texas 

111.  119.     A  party  is  not  to  be  deprived  App.  244;   Pomeroy  v.  Baddeley,  Ryan 

of  the  testimony  of  a  witness  who  dis-  &  Mooch,  430;   Everett  v.  Lowdham,  5 

obeys    the  order  of  a   court  requiring  Car.  &  P.  91. 

witnesses  to  be  separated  and  kept  out  4  The  statute  provides  for  a  view  and 

of  the   court    room.      The  penalty   for  directs  how  it   shall  be  conducted.     R. 

disobedience  must  be  enforced  against  S. 18S1,  § 53S.  See  Inspection  and  View, 

the  wrong  doing  witness  and  not  against  Work  of  the  Advocate,  232-236.     See, 

a  party  who  is  without  fault.     Burk  v.  also,  Erwin  v.  Bulla,  29  Ind.  95;   Luck 

Andis,  98  Ind.  59;   State  v.  Thomas,  m  7'.  State,  96  Ind.   16;  City  of  Indianao- 

[nd.  515;     Davis   v.  Byrd,  94  Ind.  525.  olis  v.  Scott,  72  Ind.  196. 

In  the  case  last  cited  the  doctrine  given  5  Com.  v.  Webster,  5  Cush.  295,  29S; 

a  </iKisi  approval  in  Jackson  v.  State,  14  Williams  v.  Grand  Rapids,  etc.,  Co.,  53 

Ind.  327,  is  denied.     If  witness  disobeys  Mich.  271;  Coyner  v. Boyd,  55  Ind.  166; 

it  may  affect    his   credit.     Pleasant  v.  People  v.  Buddensieck,   103  N.  Y.  487; 

.  15  Ark.  624;     Grimes  V.  Martin,  Pick  7\  Rubicon,  etc..  Co.,  27  WTis.  433, 

10  la.  347;  Betts  v.  State,  66  Ga.  50S.  442,  446;   Smith  v.  St.  Paul,  etc.,  Co.,  32 

i  Cottrell  7'.  Cottrell,  Si  Ind.  87;    La  Minn.  1;   Clayton  v.  Chicago,  etc.,  Co., 

Rue   v.  Russell.  26  Ind.  3S6;     Shew  v.  67  Iowa,  238;   Richmond   v.   Atkinson, 

Hews,    126  Ind.   474,   476;     Chester  v.  58    Mich.    413;   People    v.    Bonney,    [9 

Bower,  55  Cal.  46.  Cal.   426.      It    has    been    held    that    in 


EXERCISE  OF  DISCRETIONARY    POWER. 


539 


ing,  part  of  the  evidence  given  on  the  trial  ;  it  simply  enables 
the  triers  of  the  fact  to  apply  the  evidence.1  While  not  strictly 
evidence,  as  the  decisions  declare,  still,  it  certainly  is  not  with- 
out some  probative  influence.2 

§  620.  Compulsory  Examination  of  the  Person — Closely  akin  to 
the  subject  discussed  in  the  preceding  paragraph  is  that  of 
compelling  a  plaintiff  in  an  action  for  personal  injuries  to  sub- 
mit to  an  examination  of  his  person  by  surgeons.  Upon  this 
subject  there  is  much  diversity  of  opinion,  some  of  the  courts 
holding  that  the  demand  for  an  examination  is  a  matter  of  right, 
others  holding  that  it  is  in  the  discretion  of  the  court  to  grant 
or  deny  the  demand  for  the  examination.3  Our  own  cases  are 
in  confusion  and  indeed,  in  conflict,  although  it  can  hardly  be 
said  that  there  is  any  authoritative  decision  upon  the  subject.4 


equity  cases  the  chancellor  should  ac- 
company the  jury.  Fraedrich  v.  Flieth, 
64  Wis.  184.  There  is  a  stubborn  con- 
flict upon  the  question  whether  a  de- 
fendant  must  accompany  the  jury,  but 
the  weight  of  authority  seems  to  be  that 
it  is  not  indispensably  necessary  that  he 
should.  State  V.  Adams,  20  Kan.  311, 
324;  Queen  v.  Martin,  L.  R  1  Cr.  C. 
Res.  37S;  State  v.  Ah  Lee,  8  Ore.  214; 
Shular  v.  State,  105  Ind.  2S9. 

1  Chute  v.  State,  19  Minn.  271;  Brak- 
ken  v.  Minneapolis,  etc.,  Co.,  29  Minn. 
41;  Close  v.  Samm,  27  Iowa,  503,  507; 
Wright  v. Carpenter,  49 Cal. 607;  Heady 
v.  Yevav,  etc..  Co.,  52  Ind.  117;  Jeffer- 
sonville,  etc.,  Co.  v.  Bowen,  40  Ind.  545; 
Gagg  v .  Vetter,  41  Ind.  228. 

2  NefTc'.  Reed,  98  Ind.  341,  347.  Many 
of  the  cases,  indeed,  assign  to  a  view  the 
effect  of  evidence.  Parks  v.  Boston,  15 
Pick.  19S;  Washburn  v.  Milwaukee, 
etc.,  Co.,  59  Wis.  364;  Neilson  v.  Chi- 
cago, etc.,  Co.,  58  Wis.  516.  Some  of 
the  courts  have  been  influenced,  to  de- 
clare that  an  information  imparted  by 
a  view  is  not  evidence,  for  the  reason 
that  it  can  not  be  carried  into  the 
record.  But  this  seems  to  us  unsatis- 
factory.   Appellate  courts  do  not  weigh 


evidence,  and  hence  the  fact  that  infor- 
mation is  conveyed  by  a  view  is  not  of 
such  high  importance  as  courts  some- 
times indicate.  A  court  can,  notwith- 
standing the  fact  that  a  view  has  been 
had,  still  act  upon  the  evidence  in  the 
record,  and  if  it  appears  that  jurors 
have  disregarded  it  and  acted  upon  their 
own  knowledge,  the  courts  can  annul 
the  verdict. 

3  See  cases  cited  in  "  The  Work  of  t  lie 
Advocate.'' 234;  Schroeder  v.  Rock  Isl- 
and, etc.,  Co.,  47  Iowa,  375;  Walsh  :■. 
Sayre,  52  How.  Pr.  334;  White  v.  Mil- 
waukee, etc.,  Co.,  61  Wis.  536;  Miami, 
etc.,  Co.  v.  Baity,  37  Ohio  St.  104; 
Shephard  v.  Missouri,  etc.,  Co., 85  Mo. 
629;  Atchison,  etc.,  Co.  v.  Thul.  29 
Kan.  466;  International,  etc.,  Co.  v. 
Underwood,  64  Texas,  463;  Missouri 
Pacific  R.  Co.  v.  Johnson,  72  Texas, 95; 
Sibley  v.  Smith.  46  Ark.  275;  Lloyd  v. 
Hannibal,  etc.,  Co.,  53  Mo.  509;  Parker 
V.  Enslow,  102  111.  272,  279;  Robert-  - 
Ogdensburg,  etc.,  Co.,  29  Hun.  154; 
Stuart  V.  Haven.  17  Neb.  211;  Sioux 
Citv.  etc.,  Co.  v.  Finlayson,  16  Neb. 
578,  5ss. 

4  Kern    v.    Bridewell.    119    Ind. 
Hess  v.  Lowrey,   122   Ind.  225.   S.  C.  7 


540 


ERROR  IN  JUDICIAL  PROCEEDINGS. 


It  is  hazardous  in  view  of  the  conflict  among  the  decisions  to 
venture  an  opinion  and  especially  one  opposed  to  that  of  emi- 
nent text-writers,1  but  after  a  careful  study  of  the  question,  we 
are  unable  to  escape  the  conclusion  that  the  rule,  which  is 
probably  asserted  by  the  greater  number  of  cases,  is  wrong.  It 
is  true  there  is  much  to  be  said  in  favor  of  the  rule,  but,  as  we 
believe,  the  great  weight  of  reason  is  against  it.  The  rule  is 
one  which  may  so  operate  as  to  deter  modest  women,  or  even 
men,  from  asserting  their  just  rights,  inasmuch  as  they  may 
not  be  able  or  willing  to  bear  the  examination  of  their  persons 
by  strange  men,  and  often  men  who  are  hostile  to  them.  They 
are  in  such  cases  forced  to  sacrifice  their  rights  by  a  fear  of  ex- 
posure. The  rule,  we  venture  to  say,  assumes  to  sanction  an 
illegal  violation  of  the  right  of  personal  liberty,  and  takes  from 
the  person  of  the  citizen  the  sacredness  with  which  the  funda- 
mental law  invests  it.2 


Law.  Rep.  Anno.  90;  Terre  Haute,  etc., 
Co.  t.  Brunker,  128  Ind.  542,  26  N.  E. 
Rep.  178.  The  expressions  upon  the 
subject  in  Hess  v.  Lowrej,  supra,  are 
certainly  outside  of  the  case  and  are  not 
authoritative. 

1  Rogers'  Expert  Testimony,  §  79; 
Seymour  D.  Thompson  in  25  Central 
Law  Journal,  3,  7. 

2  Since  the  text  was  written  the  ques- 
tion has  been  passed  upon  by  the  Su- 
preme Court  of  the  United  States  in 
the  case  of  Union  Pacific  Ry.  Co.  v. 
Botsford,  11  Sup.  Ct.  Rep.  1000,  S.  C. 
1  (  Albany  Law  Jour.  325.  In  the  case 
cited  the  court  held  that  a  compulsory 
examination  could  not  be  ordered,  say- 
ing, among  other  tilings,  that:  "No 
right  is  held  more  sacred,  or  is  more 
carefully  guarded  by  the  common  law, 
than  the  right  of  every  individual  to  the 
possession  and  control  of  his  own  per- 
son, free  from  all  restraint  or  inter- 
ference  of  others,  unless  by  clear  and 
unquestionable  authority  of  law.  As 
well  said  by  Judge  Cooley:  'The  right 
to  one's  person  may  he  said   to   he    one 


of  complete  immunity;  to  be  let  alone.' 
Cooley  Torts,  29.  For  instance,  not 
only  wearing  apparel,  but  a  watch  or  a 
jewel  worn  on  the  person,  is  for  the 
time  being  privileged  from  being  taken 
under  distress  for  rent  or  attachment 
on  mesne  process,  or  execution  for 
debt  or  writ  of  replevin.  3  Black  Com. 
8;  Sunbolf  v.  Alford,  3  Mees  &  W.  24S, 
253,  254;  Mack  v.  Parks,  8  Gray,  517; 
McQuigg  v.  Dailey,  16  Ind.  324.  The 
inviolability  of  the  person  is  as  much 
invaded  by  a  compulsory  stripping  and 
exposure  as  by  a  blow.  To  compel  any 
one,  and  especially  a  woman,  to  lay 
bare  the  body,  or  to  submit  it  to  the 
touch  of  a  stranger  without  lawful  au- 
thority, is  an  indignity,  an  assault  and 
a  trespass,  and  no  order  commanding 
such  an  exposure  or  submission  was 
ever  known  to  the  common  law  in  the 
administration  of  justice  between  indi- 
viduals except  in  a  very  small  number 
of  cases  based  upon  special  reasons, 
ami  upon  ancient  practice  coming  down 
from  ruder  ages,  and  now  mostly  obso- 
lete  in  England,  and  never,  so  far  as  we 


EXERCISE  OF  DISCRETIONARY    POWER.  541 

§  621.  Discharge  of  the  Jury  before  Verdict — The  discretion  of 
the  trial  court  in  discharging  a  jury  before  a  verdict  is  reached 
will  be  reviewed  even  in  criminal  cases  only  where  it  has  been 
so  unreasonably  exercised  as  to  require  the  inference  that  the 
discretion  was  abused.  The  earlier  cases  declared  a  somewhat 
different  doctrine,  but  the  later  and  sounder  cases  affirm  that  it 
is  for  the  trial  court  to  determine  how  long  the  deliberations 
shall  be  protracted.1  This  discretion  can  not,  however,  be  un- 
reasonably exercised  without  error.  It  is  usually  said  that  the 
jury  in  criminal  cases  may  be  discharged  after  the  lapse  of  a 
reasonable  time,  but  no  definite  rule  for  determining  what  is  a 
reasonable  time  has,  so  far  as  we  can  ascertain,  been  laid  down.2 
In  civil  cases  the  jury  may  be  discharged,  as  the  statute  de- 
clares, when  it  satisfactorily  appears  that  there  is  no  possibility 
of  their  agreeing.3  This  provision  vests  a  very  comprehensive 
discretion,  if  not  an  uncontrollable  power,  in  the  trial  court,  in- 
asmuch as  its  effect  is  to  leave  the  whole  question  to  the  trial 
court,  and  if  that  court  is  satisfied  it  seems  that  all  other  courts 
must  abide  by  its  decision.  A  final  adjournment  of  the  term 
discharges  the  panel,4  and  the  failure  of  one  juror  to  appear  puts 
it  in  the  power  of  the  court  to  discharge  the  jury.5 


are  aware,  introduced  into  this  country."  charge  of  panel  and  individual   jurors, 
In  the  case  of  Pennsylvania  Co.  v.  New-  as  for  cause,  see  Doles  v.  State,  97  Ind. 
merer,  28  N.  E.  Rep.  860,  the  Supreme  555;  State  v.  Leunig,  42  Ind.  541. 
Court  of  this  State  asserts  the  doctrine  2  In  some  of  the  cases  cited  in  the  pre- 
declared   in   the   case   from  which  we  ceding  note  a  period  of  eighteen  or  nine- 
have  quoted.  teen  hours  was  regarded  as  a  reasonable 
1  Walker  v.  State  26  Ind.  346;  State  time.     In  accordance  with  the  general 
v.  Nelson,  26  Ind.  366;   Shaffer  v.  State,  rule    which  prevails  in  criminal  cases 
27  Ind.  131;     Proffatt   on  Jury  Trials,  requiring  the  presence  of  the  accused, 
Chapter  II.     See,  generally,  Miller  v.  the  jury  should  not  be   discharged  in 
State,  8  Ind.  325;  Morgan  v.  State,  13  his   involuntary  or   enforced    absence. 
Ind.  215;    Joy   v.   State,   14   Ind.    139;  State    v.    Wilson,    50    Ind.   4S7.     Nor 
Hogg  v.  State,  7  Ind.  551;    Miller  v,  should  the  jury  be  instructed  in  his  un- 
State,  supra,  intimates  a  doctrine  that  willing  absence  from  the  court.  Roberts 
can  not  be  sustained.     In  England  the  v.  State,  m  Ind.  340. 
rule  is  that  the  discretion  of  the  trial  3  R.  S.  1S81,  §  542. 
court  will  in  no  event  be  reviewed  on  *  Harris  v.  Doe,  4  Blackf.  369. 
appeal.     Queen  v.  Charlesworth,  1  B.  5  Ashbaugh    v.    Edgecomb,    13    Ind. 
&  S.  460;   Winsor  v.  Queen,  6  B.  &  S.  466;  Maynard  v.  Block,  41  Ind.  310. 
143.     As  to  what   will    authorize  dis- 


,!J  ERROR  IN  \.L,  PROCEEDINGS. 

22.  Time  for  Filing  Bills  of  Exceptions — A  trial  court,  while 
in  session,  has  a  discretionary  power  to  grant  time  either  within 
or  beyond  the  term,  for  tiling  a  bill  of  exceptions.  If  it  makes 
the  older  in  term  its  discretion  will  not  be  supervised  on  appeal, 
but  an  abuse  of  discretion  may  be  so  gross  as  to  constitute  error. 
It  is  seldom,  however,  that  an  order  designating  a  time  within 
which  an  act  shall  be  done  is  subject  to  review  on  appeal. 


CHAPTER   III. 

INVITED    ERROR. 

§623.   The  error  itself  as  distinguished  §627.    Implied   invitation    to  rule  er- 

from  matters  of  procedure  re-  roneously. 

quired  to  make  it  available.  628.   Opening  the  door  to  the  admis- 

624.  Making  wrong  rulings  available  sion  of  incompetent  evidence. 

as  error.  629.    Admission  of  incompetent  evi- 

625.  Conduct  of  the  parties  as  affect-  dence — Effect  upon  the  party 

ing  the  right  to  make  errors  who  introduces  it. 

available.  630.   The   doctrine    of  invited   error 

626.  Procuring  an  erroneous  ruling.  founded  on  the   principle   of 

4  estoppel. 

§  623.  The  Error  itself  as  distinguished  from  matters  of  Proced- 
ure required  to  make  it  Available — It  is  necessary,  at  the  outset, 
to  mark  the  difference  between  the  error  itself  and  the  proced- 
ure required  to  make  the  error  available.  That  there  is  a  ma- 
terial difference  is  perceived  without  effort  when  attention  is 
fully  directed  to  the  subject.  It  may  happen  that  there  is  a 
wrong  ruling  and  yet  no  available  error,  for  it  may  be  true  that 
the  party  is  not  in  a  position  to  avail  himself  of  the  error  or 
that  he  has  not  done  all  that  the  case  required  of  him.  It  is 
kone  thing  to  take  such  steps  as  make  it  necessary  for  the  appel- 
late tribunal  to  consider  the  wrong  ruling,  and  quite  another 
thing  to  prove  that  the  error  is  sufficient  to  reverse  the  judg- 
ment of  the  trial  court.  The  one  object  is  accomplished  when 
such  steps  are  taken  as  make  the  error  available,  but  the  other 
object  can  not  be  accomplished  without  also  showing  the  in- 
trinsic nature  of  the  wrong  ruling,  its  improper  influence  upon 
the  ultimate  judgment  given  in  the  cause  and  that  the  party 
has  not,  by  his  conduct,  precluded  himself  from  making  the 
error  available  for  the  reversal  of  the  judgment. 

§  624.  Making  wrong  Rulings  Available  as  Error — The  steps 
necessary  to  render  a  wrong  ruling  available,  that  is,  to  prop- 

f54^ 


544  ERROR  IN  JUDICIAL  PROCEEDINGS. 

erlv  bring  it  before  the  appellate  tribunal  for  review,  are  mat- 
ters of  procedure,  while  the  effect  of  the  error  upon  the  judg- 
ment appealed  from  springs  from  the  intrinsic  character  of  the 
wronff  ruling  itself.  Thus,  for  instance,  it  may  be  wrong  to 
admit  oral  testimony  of  the  contents  of  a  deed  over  objection, 
and  yet  the  wrong  may  not  be  available  as  error  because  no 
motion  for  a  new  trial  was  made.  The  steps  begin  in  the  trial 
court,1  but  continue  into  the  appellate  tribunal.2  In  rough  out- 
line these  are  the  steps  ordinarily  required  to  make  error  avail- 
able :  i.  An  objection  to  the  ruling,  or  a  request,  so  made  and 
preferred  as  to  bring  before  the  trial  court  the  specific  questions 
for  decision.  2.  A  proper  exception.  3.  A  motion  presenting 
the  ruling  to  the  trial  court  for  review  where  a  review  is  re- 
quired.3 4.  Due  reduction  to  record  of  rulings,  objections,  ex- 
ceptions and  facts.  5.  A  proper  presentation  of  the  case  to 
the  appellate  tribunal  by  record,  pleadings  and  briefs. 

§  625.  Conduct  of  the  Parties  as  affecting  the  right  to  make  Error 
Available — The  statement  that  the  conduct  of  a  party  may  be 
such  as  to  exert  an  important,  and,  indeed,  a  controlling  influ- 
ence upon  the  right  to  make  a  wrong  ruling  available  needs  no 
support  from  argument  or  authority,  for  it  carries  its  own  proof. 
A   party   may,  by  conduct,  waive   a  right  of  appeal   or  estop 

1  The  proper  foundation  for  making  J  A  failure  to  assign  error  or  to  ar- 

error  available  must  be  laid  in  the  trial  gue  errors  assigned  are  instances  of  the 

court  by  the  appropriate  request,  mo-  loss  of  a  right  in  the  appellate  tribunal, 

tion,  or  objections.     See  Requests  and  Points  conceded  below  can  not  be  made 

Offers,  Motions  for  Judgment  and  in-  on  appeal.    Sullivan  v.  McMillan(Fla.), 

cidental  matters,  Objections.    See,  also,  8So.Rep.450.  See, generally,  National, 

Coleman  v.  Bell,  4  N.  M.   46,   12   Pac.  etc.,  Bank  v.   McConnell  (Ala.),  9  So. 

Rep.  657;    Altmayer    v.  Metropolitan,  Rep.  149;  Snell  v.  De  Land  (111.),  27  N. 

etc.,  Ry.  Co.,  14  N.Y.  Supp.  311;  Glass  E.  Rep.  1S3. 

v.  Wiles  (Texas),  14  S.  W.  Rep.  225;  s  It  is  not  all  rulings  that  must  be 
Eaton  v.  Barnhill,  6S  Miss.  305,  3  So.  brought  before  the  trial  court  for  re- 
Rep.  849;  Wetzler  v.  Duffy,  7S  Wis.  view,  but  there  are  many  rulings  where 
170,  S.  C.  12  Law.  Rep.  Anno.  178;  this  is  necessary.  As  will  be  hereafter 
McGraw  V.  Franklin,  2  Wash.  17,26  shown  the  general  rule  is  that  rulings 
Pac.  Rep.Sio;  Halstead  Lumber  Co.  v.  in  the  conduct  of  the  trial  must  be 
Sutton  (Kan.),  26  Pac.  Rep.  444;  Read-  brought  before  the  trial  court  for  review 
dy  v.  Shamokin,  137  Pa.  St.  92,  20  Atl.  in  the  appropriate  mode. 
Rep.  424;  First  Nat.  Bank  v.  Holt,  87 
Cal.  15S,  25  Pac.  Rep.  272. 


IX  Yli  ED   ERROR.  545 

himself  from  prosecuting  an  appeal.1  Upon  the  same  general 
and  far  reaching  principle  he  may,  by  his  conduct,  place  him- 
self in  such  a  position  as  to  preclude  him  from  taking  advan- 
tage of  an  erroneous  ruling,  although  he  may  take  the  neces- 
sary steps  required  to  present  the  ruling  for  review  and  show 
its  character  and  influence.2 

§  626.  Procuring  an  Erroneous  Ruling — A  party  who  expressly 
asks  that  a  designated  ruling  he  made  can  not  avail  himself  of 
that  ruling  on  appeal,  although  it  may  be  material  and  may  be 
exhibited  by  the  record.  What  a  party  expressly  asks  can  not 
be  made  available  as  error  without  a  violation  of  the  plainest 
principles  of  the  law.  The  rule  we  have  stated  is  illustrated  in 
a  variety  of  cases.  Where  a  party  asks  the  court  to  consolidate 
cases,  he  can  not  complain  of  an  order  of  consolidation  made  in 
compliance  with  his  request.3  A  party  who  invites  incompe- 
tent testimony  by  his  own  mode  of  examining  a  witness  can  not 
be  heard  to  aver  that  the  testimony  was  erroneously  admitted.4 
An  instruction  given  at  the  request  of  a  party  can  not  be  suc- 
cessfully complained  of  by  the  party  at  whose  request  it  was 
given.  •' 

1  Ante,  §§  150,  2S9;  Neel  v.  City  of  The  case  of  Washington  v.  Louisville. 
Toledo,  5  Ohio  Cir.  Ct.  203.  We  are  etc..  34  111.  App.  658,  S.  C.  on  appeal  26 
not.  however,  here  directly  concerned  N.  E.  Rep.  653,  supplies  a  striking  illus- 
with  the  general  doctrine  of  waiver  and  tration  of  the  doctrine  that  a  party  may 
estoppel,  but  it  is  proper,  as  we  sup-  by  his  conduct  preclude  himself  from 
pose,  to  refer  to  the  doctrine,  inasmuch  assailing  the  rulings  of  the  trial  court 
as  it  is  the  major  one  and  necessarily  on  appeal. 

includes  the  minor.      The  subject  we  3  Parker  v.  People,  13  Col.  155. 

here  propose  to  discuss  is  involved  in  *  Musselman   v.   Mussulman,  44   Ind. 

the  greater   doctrine,  but  it   possesses  106;  Reynolds  v.  State,  27  Neb.  90,  S. 

such    peculiar    characteristics    that    a  C.  20  Am.  St.  659. 

special  consideration  seems  necessary.  5  Pennsylvania  Co.  r.  Roney,  89  Ind. 

2  Bowen  v.  Carolina,  etc.,  Co.  (So.  453;  Minot  v.  Mitchell,  30  Ind.  228; 
Car.),  13  S.  E.  Rep.  421;  Ellison  v.  Scott  v.  Board,  101  Ind.  42.  citing 
Rerick,  125  Ind.  396,  25  X.  E.  Rep.  454;  Barker  :■.  Hobbs,  6  Ind.  385;  Robertson 
Lee  v.  Hassett,  39  Mo.  App.  67;  Fla-  :•.  Caldwell,  9  Ind.  514;  Loomis  v. 
herty  7'.  Miner,  33  N.  Y.  St.  Rep.  68l,  Wabash,  etc.,  Co..  17  Mo.  App.  340; 
25  N.  E.  Rep.  41S;  Shinnabarger  v.  Leabo  v.  Goode,  67  Mo.  126;  Noble  :■. 
Shelton,  41  Mo.  App.  147;  Hearman  Blount,  77  Mo  235;  Holmes  v.  Braide- 
rs Owen,  42  Mo.  App.  387;  Payne  V.  wood,  n:  Mo.  610;  Dennis  :-.  Maxfield, 
Hardesty  (Ky.),  14  S.  W,  Rep.  34S;  10  Allen,  138,  Pareons  :.  Hedges,  15 
Smith  -'.  Dittman,  11  N.  Y.  Supp.  769.  Iowa,    119;    Philadelphia,   etc.,  Co.   :■. 

35 


546  ERROR   IN  JI   DICIAL  PROCEEDINGS. 

§  627.  Implied  Invitation  to  Rule  Erroneously — A  ruling  may  be 
impliedly  requested  by  a  party  and  if  it  is  so  requested  he  can 
not,  on  appeal,  take  any  advantage  from  the  ruling.  In  cases 
where  there  is  only  an  implied  invitation  to  make  a  particular 
ruling,  the  difficulty  is  in  determining  the  extent  and  effect  of 
the  invitation,  but  where  there  is  no  uncertainty  as  to  the  effect 
of  the  invitation,  it  is  clear  that  no  advantage  can  be  taken  of 
the  ruling  made  in  response  to  the  invitation.  The  doctrine 
stated  is  tacitly,  at  least,  enforced  in  the  cases  which  hold  that 
a  plaintiff  can  not  complain  that  his  own  pleadings  are  defect- 
ive. In  all  such  cases  there  is  an  implied  invitation  to  treat  the 
party's  pleading  as  sufficient,  and  he  is  not  in  a  situation  to  suc- 
cessfully complain.1  The  admission  of  a  fact  in  a  pleading  is 
an  implied  invitation  authorizing  an  assumption  that  evidence 
of  the  admitted  fact  is  unnecessary.2  Submitting  a  case  for  de- 
cision, without  objection,  implies  that  it  is  in  a  condition  to  be 
decided,  and  that  the  questions  involved  are  so  presented  that 
the  court  may  properly  give  judgment.3  But  this  doctrine  can 
not  be  extended  so  far  as  to  violate  the  fundamental  rule  that 
consent  can  not  confer  jurisdiction  of  the  general  subject.  A 
party  at  whose  instance  a  particular  mode  is  pursued  in  appoint- 
ing a  referee  can  not  successfully  assert  that  the  mode  adopted 
was  erroneous.1  If  a  party  insists  that  evidence  is  competent, 
he  invites  the  court  to  so  treat  it,  and  the  error  in  admitting  it  is 
rendered  unavailable  by  the  invitation.5    A  defendant  who  pre- 

Harper,  29  Md.  330;  Territory  v.  Bur-  generally,  Roy  v.  Union  Mercantile  Co. 

gess,  8  Mont.  57,  igPac.Rep.  55S;  Chi-  (Wyo.),  26  Pac.  Rep.  996;   Newton  v. 

cago,  etc., Co.-'.  Snyder,  128  111. 655, 21  Newton,  46  Minn.  43, 48  N.W.Rep.450; 

N.   E.  Rep.  520.     In  the  early  case  of  Wynn  v.  Central  Park,  etc.,  Co..  14  N. 

Prather  v.  Rambo,   1    Blackf.   1S9,   the  Y.    Supp.    172;    Parker    v.    Richolson, 

court  disposed  of  a  specification  of  er-  46  Kan.  283.  26  Pac.  Rep.  729. 

ror  upon  the  principle    stated    in    the  3  Miller  :•.  Powers,  iS  Ind.  263;  Dodge 

text,  and  in  doing  so  declared   that    a  v.  District  Township,  17  la.  85;   Elwell 

party  "has  no  right  to  complain  of  an  v.  Dodge,  33  Barb.  336.     See,  generally, 

error  or   irregularity  produced   by  his  Davenport   v.   Alpin.  70  Mich.   192,  38 

own  act."  N.  W.  Rep.  211;   Heavnerv.  Saeger,  79 

1  Henderson  v.  Barbee,  6  Blackf.  26.  Ga.  471,  4  S.  E.  Rep.  767. 

2  Morrill  v.   Richey,   iS  N.  H.  295;  *  Totten's  Appeal,  40  Pa.  St.  385. 
Cook  v.  Farrah,   105  Mo.  492,  16  S.  W.  5  Mitchell    v.    Monette,  37    Ala.    49. 
Rep. 692;  Holmes  v.  Fairbanks,  17  Wis.  See   /;/  re  Bull,   14  Daly,  510,  2  N.  Y. 
434;  Bird  v.  Lanius,  7  Ind.  615.     See,  Supp. 52. 


[NVITED   ERROR.  547 

vents  explanations   invites  a  ruling    holding  such   explanations 
improper  and  he  can  not  complain  that  they  were   not  made.1 
A  partv  who  asks  oral  instructions  can  not  successfully  allege 
as  error  that  they  were  not  reduced  to  writing.1'  Where  a  party 
improperly  requests  and  wrongfully  obtains  a  change  of  venue 
his  invitation  to  order  the  change  precludes  him  from  success- 
full  v  assigning  error  upon  the  order.3     If  one   party  asks   in- 
structions asserting  a  designated  theory  he  can  not  complain 
that  the  court  gave  similar  instructions   at  the  request  of  his 
adversary.1     It  has  been  held  that  if  a  party  asks  an  instruction 
declaring  that  facts  enumerated  in  it  are  immaterial,  he  will  be 
deemed  to  have  invited  the  court  to  act  upon  the  theory  that 
such  facts  exist.5     Where  a  party  moves  for  judgment  upon  the 
theory  that  the  questions   presented  were  questions  of  law,  he 
can  not  successfully  change  position  and  allege  that  the  ques- 
tions were  questions  of  fact.6     The  general  doctrine  that  a  party 
can  secure  no  advantage  from  an  invited  ruling  is  tacitly  as- 
serted in  the  cases  which  hold  that  a  party  who  tenders  an  im- 
material issue  can  not  successfully  complain  because  the  court 
tried  the  case  upon  the  issue  he  tendered.7     The  common  law 
system  of  pleading  recognized  and  enforced  a  rule,  which,  in 
effect,  was  the  same  as  that  which  we  have  here  regarded  as  the 

1  Claflin  v.  Farmers'  Bank,  etc.,  36  559;  Connoble  v.  Clark,  3S  Mo.  App. 
Barb.  540.  See,  generally,  Floyd  v.  486;  Bagley  v.  Grand  Lodge,  etc.,  131 
Floyd,  4  Rich  (So.  Car.),  23;   Kelly  v.     111.  49S,  22  N.  E.  Rep.  487. 

Davis,  1   Head.  (Tenn.)  71;    Wilsons.        5  New  Era  Life  Association  tf.Weigle, 
McAdams,  10  Iowa,  590.  12S  Pa.  St.  577,  18  Atl.  Rep.  393.     See, 

2  State  v.   DeMoss,  98  Mo.  340,  11  S.     upon  the  general  subject,  State  In- 

\V.  Rep.  731.    See,  generally,  Pledger  v.  v.  Schreck,  27  Neb.  527,  43  N.  W.  Rep. 

State,  77   Ga.   242,  3  S.   E.   Rep.  320;  340,    S.  C.  6  Lawyers  Rep.  Anno.  524; 

Chicago,  etc.,  Co.  v.  Snyder,  12S  111.  Carpenter  v.  Wilmot,  24  Mo.  App.  589; 

655,  21  N.  E.  Rep.  520.  Taylor  v.  Penquite,  35  Mo.  App. 

3  State  v.  Anderson,  96  Mo.  241,  9  S.  Missouri  Pacific  R.  Co.  v.  Schoennen, 
\V.  Rep.  636.  37  Mo.  App.  612. 

4  Shinnabarger  v.  Shelton,  41  Mo.  6  Sire  V.  Rumbold,  n  N.  Y.  Supp. 
App.  147;  Suarez  v.  Manhattan  Ry.  Co.,  734.  See,  generally,  Flaherty  v.  Minor, 
60  Hun.  584, 15N.Y.  Supp.222;  Barker  123  N  V  .  382,  25  N.  E.  Rep.4iS;  Strong 
v.  Livingston  County  Bank.  30  111.  591;  v.  Manufacturing  Co.,  6  Hun. 528;  1  ■  _ 
Chapman  v.  Barnes,  29  111.  App.  184.  gett  v.  Hyde,  58  X.  V.  272,  275;  Koeh- 
See,  generally,  Whitmore  :•.  Supreme  ler  v.  Adler,  7S  N.  Y    2S7. 

Lodge,  etc..  100  Mo.  36,  13  S.  W.  Rep.        7  O'Neal  v.  Wade,  3  Ind.  410. 
495;     Demetz   :•.  Benton,  35   Mo.  App. 


548  ERROR   IN  JUDICIAL  PROCEEDINGS. 

rule  interdicting  parties  from  availing  themselves  of  rulings  pro- 
duced bv  their  own  act.  Although  the  rule  of  the  common  law 
was  differently  designated,  it  was  in  all  essential  particulars  the 
rule  we  have  been  discussing,  for  it  denied  to  parties  benefit  from 
erroneous  rulings  upon  the  pleadings  brought  about  by  their  in- 
vitation. The  rule  of  the  common  law  to  which  we  refer  is  that 
which  denied  the  partv  who  committed  the  first  fault  in  plead- 
ing the  right  to  complain  that  his  adversary  followed  in  the 
erroneous  direction  marked  out  by  him.1 

*  G28.  Opening  the  door  to  the  Admission  of  Incompetent  Evi- 
dence— The  principle  that  a  party  who  impliedly  invites  a  rul- 
ing can  not  make  the  invited  ruling  available  for  the  reversal 
of  a  judgment  finds,  perhaps,  its  strongest  manifestation  in  the 
doctrine  that  a  party  who  adduces  evidence  of  a  particular 
class  or  character  opens  the  door  to  his  adversary  for  the  ad- 
mission of  evidence  of  like  kind  and  character.  In  adducing 
such  evidence  there  is  an  implied  invitation  to  the  court  to  rule 
that  the  kind  or  class  of  evidence  given  is  competent,  and  the 
party  who  invites  the  ruling  by  his  own  conduct  shuts  out  all 
objections.  He  affirms,  in  effect,  the  competency  of  the  evi- 
dence and  upon  that  affirmation  secures  its  admission.  He  can 
not  escape  the  force  and  effect  of  his  own  conduct,  for  what  he 
requests,  impliedly  or  expressly,  he  can  not  afterwards  con- 
demn. To  permit  a  party  to  affirm  at  one  time  that  testimony 
is  competent  and  at  another  that  it  is  incompetent  would  vio- 
late the  principle  prohibiting  parties  from  occupying  inconsist- 
ent positions.  The  rule  rests  on  solid  principle  and  is  required 
by  considerations  of  fairness  and  expediency.  There  is  some 
diversity  of  opinion  as  to  the  foundation  upon  which  the  rule 
rests,  and,  indeed,  some  conflict  as  to  the  rule  itself,  but  the 
di-cided  weight  of  authority  supports  the  rule.2     It  is,  however, 

1  The  rule  under  the  code  that  a  "bad  State,   103  Ind.   101;   Hobbs   v.  Board, 

answer  is  good  enough  for  a  bail  com-  116  Ind.  376;  Nitche  v.  Earle,  117  Ind. 

plaint"  is  taken  from  the  common  law,  270;   Mosier  v.  Stoll,  119  Ind.  244,  261; 

and   it  is   really  but  the   application  of  Perkins  v.  Hayward,  124  Ind.  445,  449. 

the  general  doctrine  of  invited  error.  In  Perkins  v.  Hayward,  supra,  the  court 

3  Lowe  v.  Ryan,  94  Ind.  450;   Meran-  said:     "If  a  part}'   opens  the  door  to 

da  v.  Spurlin,  100  Ind.  3S0;   H  in  ton  v.  the  admission  of  incompetent  evidence 

W'hittaker,  101  Ind.  344;    Dinwiddie  v.  he  is  in  no  plight  to  complain  that  his 


INVITED   ERROR. 


549 


to  be  kept  in  mind  that  the  situation  of  the  parties  may  exert 
an  important  influence  upon  the  question,  for  it  is  often  true  that 
evidence  is  competent  when  offered  by  one  party  but  incompe- 
tent when  offered  by  the  other.  The  rule  does  not,  of  course, 
apply  where  the  position  of  the  parties  changes  the  character 
of  the  evidence.  It  may  not  be  amiss  to  say  that  the  fact  that 
incompetent  evidence  is  admitted  does  not  so  conclude  the 
court  as  to  compel  it  to  allow  the  incompetent  evidence  to  be 
continued,  without  limitation  or  restriction  ;  the  rule,  in  truth, 
operates  upon  the  parties  rather  than  upon  the  court. 

§  629.  Admission  of  Incompetent  Evidence— Effect  npon  the  Party 
who  Introduces  it — A  party  who  introduces  incompetent  evidence 
does  so  at  the  peril  of  injury  to  himself,  since  he  may,  by  the 
introduction  of  such  evidence,  cut  himself  oft*  from  giving  other 
evidence  to  explain  or  confirm  it.1  A  party  may  open  the  door 
for  his  adversary  and  preclude  himself  from  having  it  shut 
against  his  adversary,  but  he  can  not  insist  that  the  door  shall 
be  kept  open  for  his  benefit  because  it  was  once  opened  at  his 
instance.2  His  position  is  very  different  from  that  of  his  op- 
adversary  followed  through  the  door  "  It  would  be  strange  if  the  appellants 
thus  opened."  The  rule  was  thus  stated  could  use  such  work  to  establish  the 
in  Lowe  v.  Ryan,  supra:  "Appellant  question  of  ecclesiastical  law  or  church 
first  sought  and  took  the  opinion  of  his  law  deemed  favorable  to  him,  and  could, 
witnesses  as  to  whether  or  not  the  mar-  at  the  same  time,  dispute  its  use  by  the 
ket  value  of  his  lands  would  be  increased  appellees  upon  questions  favorable  to 
or  diminished  by  the  proposed  highway,  them.  This  he  can  not  do."  To  sub- 
Having  done  so  he  is  not  in  a  position  stantially  the  same  effect  are  the  cases 
to  ask  a  reversal  of  the  judgment  be-  of  Ward  v.  Washington  Ins.  Co.,  6 
cause  his  adversaries  were  allowed  to  Bosw.  229;  Holten  v.  Holten,  5  Weekly 
meet  his  case  with  like  opinion  from  Dig.  14.  See,  also,  Glover  v.  Stephen- 
their  witnesses."  In Dinwiddie  v. State,  son,  126  Ind.  ^2\  Minton  v.  Under- 
supra,  the  court  said:  "  It  is  settled  by  wood,  etc.,  Co.,  79  Wis.  646,  4S  N.  W. 
the  adjudications  of  this  court  that  a  Rep.  857;  Little  Rock,  etc.,Co.  v.  Tank- 
party  can  not  make  available  for  a  re-  ersly  (Ark.),  14  S.  W.  Rep.  1099;  In- 
versal  of  a  judgment  the  exclusion  of    gram  v.  Wackernagel  (Iowa),  4S  N.W. 


evidence  where,  upon  his  objection,  like 
evidence  was  excluded  when  offered  by 
the  other  party."  In  Gafl  w.Greer,88 
Ind.  122,  12S,  one  of  the  parties  read 
from  a  book  and  the  other  also  read 
from  the  same  book,  and  it  was  held 
that  he  was  not  in  a  position  to  suc- 
cessfully  complain,   the  court    saying: 


Rep.  99S;  Jackson  v.  State,  28  Texas 
App.  143,  16  S.  W.  Rep.  247;  McGraw 
v.  Franklin,  2  Wash.  17,  25  Pac.  Rep. 
911,  S.  C.  26  Pac.  Rep.  Sio. 

1  Trenton  Mutual  Life  &  Fire  Ins. 
Co.  v.  Johnson,  24  X.J.  L.  576;  Brand 
v.  Longstreet,  1  South  (N.  J.),  325. 

2  Lyons  v.  Teal,  28  La.  Ann.  592. 


550  ERROR   IN  JUDICIAL  PROCEEDINGS. 

ponent,  and   he  can  not  successfully  demand  to  be  allowed  to 
continue  to  violate  the  rules  of  evidence.1 

§  630.  The  doctrine  of  Invited  Error  is  founded  on  the  principle 
of  Kstoppel — The  rule  that  a  party  can  not  successfully  assail  a 
decision  given  upon  his  express  or  implied  invitation  is  really 
nothing  more  than  an  application  of  the  general  principle  that 
parties  will  be  held  to  the  theories  they  present  and  upon  which 
they  secure  action  by  the  court.2  The  foundation  principle  of 
the  whole  doctrine  is  the  principle  of  estoppel.  In  all  the 
various  forms  in  which  the  rule  confining  parties  to  the  theories 
asserted3  has  been  applied  there  is  some  element  of  estoppel, 
not,  of  course,  precisely  such  an  element  as  is  present  in  cases 
concerning  property  rights,  but  one  very  closely  resembling  it. 
Thus,  in  a  case  where  parties  invite  the  court  to  treat  the  ques- 
tions which  control  the  case  as  questions  of  law  and  not  of  fact, 
there  is  a  representation  that  the  questions  are  questions  of  law, 
and  it  is  but  applying  the  principle  of  estoppel  to  refuse  to  per- 
mit the  representation  to  be  withdrawn  ; 4  the  same  principle  is 
asserted  in  the  cases  which  hold  that  where  a  party  insists  that 
a  contract  is  to  be  construed  in  a  particular  way,  he  can  not 

1  If,  however,  incompetent  evidence  the  exceptor's  objection  this  evidence 
is  admitted  without  objection  and  it  was  excluded.  This  having  occurred, 
sustains  the  rinding  or  verdict,  the  and  the  excluded  evidence  thereby  fail- 
judgment  will  not  be  reversed.     Graves  ing  to  form  a  part  of  that  reserved  in 

State,  121  Ind.  357;  Taylor  v.  State  the  record,  the  exceptor  is  plainly  es- 
(liul.),  29  N.  E.  Rep.415;  Stockwell  v .  topped  from  contending  that  the  re- 
State,  101  Ind.  1;  Riehl  v.  Evansville  ceiver  failed  to  prove  the  facts  rejected 
Foundry  Association,  104  Ind.  70;  Yea-  at  his  own  instance.     Bigelow  on  Es-~ 

.  Wright,  112  Ind.  230;   McFadden  toppel  (5th  ed.),  720." 

v.  Fritz,  no  Ind.  1,  5;   Indiana,  etc.,  Co.  8  Ante,    "Holding    Parties    to    Trial 

v.Finnell,  116  Ind.  414,  422.     See  Rob-  Court  Theories,"  Chapter  XXIV. 

tits  v.  Graham,  6  Wall.  578;  Doyle  v.  *  Dillon  v.  Cockcroft,  90  N.  Y.  649; 

Mulren,  7  Abb.    Pr.   R.  (N.  S.),   258;  Trustees  of  East  Hampton  v.  Kirk,  68 

Belknap  v.  Sealey,  14  N.  Y.  143;  Shall  N.  Y.  459,  464;     Winchell  v.  Hicks.  iS 

-     Lathrop,  3  Hill.  237;  Pike  v.  Evans,  N.  Y.  558;  O'Neill  v.  Jones,  43  N.  Y. 

i,  Johns.  210.  84;   Ormes  v.  Dauchv,  S2  N.  Y.  443,  S. 

*  In  the  case  of  Greeley  v.  Provident  C.  37    Am.  Rep.  5S3;    Republic    Life 

Savings  Bank,  103  Mo.  212,  221,  it  was  Insurance  Co.  v.  Swigcrt  (111.),  25  N.  E. 

said:     "Besides,   in   this  case,   the   re-  Rep.  6S0,  12  Lawyers   Rep.  Anno.  328; 

ceiver's  counsel  offered   competent  evi-  San  Diego  Land,  etc.,  Co.  v.  Neabe.  78 

dence  to  prove  the  fact  in   dispute,  to  Cal.  So,    11    Lawyers  Rep.  Anno.  604; 

wit,  the  receiver's  compensation,  but  on  Crabs  V.  Mickle,  5  Ind.  145. 


I'.  VITED   ERROR. 


551 


successfully  complain  that  the  court  adopted  the  construction 
he  requested.1  The  principle  is  enforced  in  the  cases  which 
hold  parties  to  the  construction  placed  by  them  on  the  plead- 
ings.- It  is  also  enforced  in  the  cases  which  hold  that  where  a 
party  asserts  that  a  definite  theory  of  the  law  is  applicable  to 
the  evidence,  he  will  not  be  permitted  to  withdraw  his  assertion 
and  assume  a  different  position.3  Where  a  party  objects  to  the 
introduction  of  primary  evidence,  and  his  objection  has  the  ef- 
fect of  procuring  the  introduction  of  secondary  evidence,  he 
will  not  be  heard  to  allege  on  appeal  that  the  trial  court  erred 
in  admitting  the  secondary  evidence.4  In  one  of  the  reported 
cases  the  doctrine  was  carried  very  far,  for  it  was  held  that  if  a 
party  secures  the  exclusion  of  evidence  he  can  not  successfully 
urge  upon  appeal  the  point  that  for  want  of  the  very  evidence 
which  he  procured  the  court  to  reject,  the  judgment  can  not  be 
sustained.5  Another  case,  much  the  same  as  that  referred  to, 
asserts,  even  in  stronger  terms,  a  similar  doctrine.6     The  doc- 


1  Hodges  :•.  Rowing,  58  Conn.  12,  S. 
C.  7  Lawyers  Rep.  Anno.  87. 

2  Daniels  z\  Brodie,  54  Ark.  216,  15 
S.W.  Rep.  4^7,  n  Law.  Rep.  Anno.  Si. 

3  Graham  :•.  Nowlin,  54  Ind.  3S9. 

4  Larey  v.  Baker,  85  Ga.  6S7,  11  S.  E. 
Rep.  800,  S02.  In  the  case  cited  the  court 
said:  "  We  think  the  court  was  wrong 
in  admitting  the  record  from  the  clerk's 
office  and  rejecting  the  original  home- 
stead papers.  He  should  have  admitted 
the  original  papers  and  rejected  those 
from  the  clerk's  office  as  w  as  decided 
bv  this  court  in  the  case  of  Brown  v. 
Driggers,  60  Ga.  114.  But,  as  the  error 
was  caused  by  Baker  objecting  to  the 
original  homestead  papers  lie  ought  not 
to  be  allowed  to  take  advantage  of  it. 
lie  can  not  take  a  benefit  from  his  own 
wrong." 

6  Jobbins  v.  Gray,  34  111.  App.  20S, 
219.  The  court  said  in  the  case  referred 
to:  "Appellant  can  not  be  allowed  to 
procure  an  erroneous  ruling  in  bis  favor 
and  exclude  competent  and  material 
evidence  on  the  trial  when  it   is  Offered 


and  ready  to  be  produced,  and  then  on 
appeal  insist  that,  for  want  of  that  very 
proof,  the  decree  can  not  be  sustained. 
A  party  will  never  be  allowed  to  so 
take  advantage  of  his  own  wrong,  or 
the  errors  of  the  court  induced  on  his 
own  motion,  and  then  compel  the  op 
posite  party  to  suffer  the  consequences. 
Such  a  proceeding  would  be  the  merest 
trilling  with  the  court."' 

6  Insurance  Co.  of  Pennsylvania  v. 
O'Connell.  34  111.  App.  357,  362.  The 
court,  in  the  case  cited,  thus  expressed 
its  decision:  "It  comes  in  poor  grace 
and  entirely  too  late  from  appellant,  to 
now  insist  that  the  verdict  was  not  sup- 
ported bv  the  evidence,  when  the  ap- 
pellee was  ready  and  anxious  to  make 
full  and  complete  proof,  so  as  to  fasten 
liability  on  the  appellant,  and  vet  was 
prevented  from  so  doing  by  the  court, 
on  the  motion  or  objection  of  appellant. 
A  party  will  not  be  permitted  to  thus 
force  error  into  the  record  and  then 
himself  take  advantage  of  it  on  appeal." 


552  ERROR  IN  JUDICIAL  PROCEEDINGS. 

trine  asserted  by  the  cases  to  which  we  have  referred  is  a  whole- 
some one,  inasmuch  as  it  tends  to  make  parties  cautious  in  in- 
terposing objections.  It  is  founded  on  solid  principle.  It  rests 
on  the  long  established  rule  that  a  party  who  makes  a  repre- 
sentation by  words  or  conduct  will  not  be  allowed  to  withdraw 
'  it  to  the  prejudice  of  another  who  has  rightfully  acted  upon  it. 


CHAPTER  IV. 


II  A  R  M  L ESS     ERROR 


$  631. 


632. 
633- 

634- 


635- 
636. 

637- 
63S. 


639' 

640. 
641. 

642. 


Difference  between  decisions  af-      §  643. 
fecting  primary  rights  and  de- 
cisions  affecting  procedure. 

Error  without  prejudice.  644. 

Right  result  reached  by  wrong 
mode.  645. 

Limitations  of  the  rule  that  there 
is  no  available  error  where  a 
right  result  is  reached.  646. 

Uninfluential  error. 

Nominal    damages — Failure    to         647. 
assess.  648. 

Rulings  on  demurrer. 

Resorting   to   the    evidence   to        649. 
avoid    the    effect    of  a  wrong 
ruling  upon  demurrer. 

Rulings  on  motions  to  strike  out         650. 
or  reject  pleadings.  '  651. 

Pleadings  defective  in  form. 

Rulings  in  admitting  and  ex- 
cluding evidence.  652. 

Instructions — What  errors  are 
in  general  regarded  as  unin- 
fluential. 


Verdict  clearly  right  on  the  ev- 
idence, erroneous  instructions 
harmless. 

Instructions — Verbal  inaccura- 
cies. 

Erroneous  instructions  are  gen- 
erally harmless  where  there  is 
a  special  verdict. 

Equity  cases — General  instruc- 
tions unnecessary. 

Incomplete  instructions. 

Instructions  —  Construction  of 
on  appeal. 

Erroneous  rulings  in  selecting 
and  impaneling  the  jury  often 
harmless. 

Misconduct  of  jurors. 

Special  interrogatories  to  jury — 
What  rulings  are  harmless, 
although  erroneous. 

Erroneous  rulings  upon  ver- 
dicts that  are  regarded  as 
harmless. 


§  631.  Difference  between  Decisions  affecting  Primary  Rights  and 
Decisions  affecting  Procedure — In  order  to  obtain  a  clear  and  ad- 
equate conception  of  the  meaning  of  the  term  "  harmless  errors," 
it  is  necessary  to  mark  the  difference  between  decisions  affect- 
ing primary  or  fundamental  rights  and  decisions  affecting  rights 
which  exist  by  virtue  of  rules  established  for  the  conduct  and 
regulation  of  matters  of  procedure.  The  difference  exists  and 
is  important.  A  primary  right  is  violated  when  a  recovery  is 
denied  in  a  case  where  there  is  a  meritorious  cause  of  action 
well  presented,  as,  for  instance,  where  a  party  shows  a  valid 
contract,  full  performance  and  damages  ;  a  remedial  right  is 

(553) 


554  ERROR   IN  JUDICIAL  PROCEEDINGS. 

violated  where  some  rule  of  procedure  is  disregarded,  as,  for 
instance,  where  a  court  refuses  to  instruct  in  writing  when 
properly  requested.  The  one  class  of  decisions  affects  directly 
the  primary  right  while  the  decisions  of  the  other  class,  while 
they  may  indirectly  affect  the  primary  right,  do  not  necessarily 
do  so,  but  do  directly  affect  the  remedy.  Thus,  a  decision  that 
a  recovery  can  be  had  upon  a  contract  where  there  has  been 
no  performance  affects  the  primary  right  directly,  while  a  de- 
cision admitting  parol  evidence  where  only  written  evidence  is 
competent,  directly  violates  a  rule  of  evidence,  but  indirectly 
violates  a  primary  right.  A  wrong  decision  is,  as  a  rule,  preju- 
dicial where  it  impairs  a  primary  right  or  denies  a  remedy  for 
such  a  right,  but  where  the  wrong  decision  affects  mere  matters 
of  procedure  and  does  not  impair  a  primary  right  nor  deny  or 
abridge  a  remedy,  it  is  in  many  cases,  but  not  in  all,  regarded 
as  a  harmless  error.  But  not  all  errors  in  matters  of  procedure 
can  be  regarded  as  harmless,  for  parties  have  a  right  to  a  judi- 
cial hearing  and  judgment  according  to  the  established  rules 
of  law.  It  is  enough  to  say  now  that  harmless  errors  are  gen- 
erally such  as  concern  matters  of  procedure,  while  errors  affect- 
ing the  primary  right  are  generally  prejudicial. 

§  632.  Error  without  Prejudice — An  error  without  prejudice  is 
always  a  harmless  error.1  The  general  statement  we  have 
made  is  undoubtedly  correct ;  it  is,  indeed,  self-evident,  and  it 
may  be  extended  by  adding  that  the  record  must  be  so  made 
up  as  to  authorize  the  inference  that  the  error  was  prejudicial 

1  De  Johnson   v.   Sepulbeda,  5    Cal.  Gross  v.  Haislev  (Ind.  App.  Ct.),  2S  N. 

149;  Fulmer  v.  Fulmer,  22  Iowa,  230;  E.  Rep.  123;   Mansfield  v.   Shipp,   12S 

Ealer  -•.  Freret,  11  La.  Ann  455;  Bos-  Ind.  55,  27   N.   E.  Rep.  427;  Nixon  v. 

ley  v.  Chesapeake  Ins.  Co.,  3  Gill.  &  J.  Campbell,  106  Ind.  47;  Davis  v.  Reamer, 

450;    Orth  v.  Dorschlein,  32   Mo.  366;  105  Ind.  31S;   Leary  v.  Moran,  106  Ind. 

Greenough   v.   Shelden,  9   Iowa,   503;  560;  Union  Mutual  Life  Ins. Co.  v.  Bu- 

Woodward  v.  Horst,  10  Iowa,  120;  Oli-  chanan,  100  Ind.  63;  McGeer.  State,  103 

ver  v.   Depew,  14  Iowa,  490;   Willis  v.  Ind.  444;  Louisville,  etc.,  Co.  v.  Thomp- 

Chambers,  S  Texas,   150;  Indianapolis,  son,  107  Ind.  442;  New  v.  New,  127  Ind. 

etc.,  Co.  7-.  Smythe,  45  Ind.  322;  Lynch  576;   Stefani  v.  State,  124  Ind.  3;  Proo- 

v.  Lcurs,  30  Ind.  411;   Morse  v.  Morse,  tus  v.  Holmes,  33  111.  App.  312;   Kelsey 

25  Ind.  156;   Starr  v.  Hunt,  25  Ind.  313;  v.  Cooky.  58    Hun. 601.  11  N.  Y.  Supp. 

Cincinnati,  etc.,  Co.  v.  Rodders,  24  Ind.  745;   Herbert  v.  City  of  North  Hamp- 

103;    Hubble    v.    Wright,  23   Ind.  322;  ton,   152  Mass.  2C16.  25  N.  E.  Rep.  467; 

Fankboner   :■.   Far.kboner,   20   ind.  62:  Waarich  v.  Winter,  33  111.  App.  36. 


HARMLESS   ERROR.  555 

or  was  probably  prejudicial.1  The  difficulty  lies  in  the  applica- 
tion of  the  general  rule.  Some  of  the  cases  assert  that  where 
the  record  shows  error  the  court  must  presume  injury,2  but  this 
statement  is  too  broad.  We  suppose  that  whether  an  error  is 
or  is  not  prejudicial  may  always  be  determined  as  a  matter  of 
inference  from  the  record,  and  that,  while  it  can  hardly  be  said 
that  there  is  a  general  rule  for  determining  whether  an  error  is 
or  is  not  prejudicial,  it  may,  nevertheless,  be  safely  said  that 
there  must  be  enough  in  the  record  to  overcome  the  presump- 
tion that  no  wrong  was  done  by  the  trial  court  and  to  fairly  and 
reasonably  warrant  the  inference  that  the  wrong  ruling  was.  at 
least,  probably  prejudicial.  It  is  undoubtedly  true  that  there  may 
be  cases  where  the  record  shows  that  the  materiality  of  the  ruling- 
is  such  as  to  authorize  the  inference  that  injury  resulted,  and 
where  this  is  so  the  error  can  not  be  regarded  as  harmless. 
This  is  often  true  with  respect  to  the  admission  of  incompetent 
evidence,  for  the  reason  that  the  appellate  tribunal  can  not  say 
in  all  cases  whether  the  incompetent  evidence  did  not  influence 
the  jury.3  There  may  be  many  witnesses  against  one,  and  yet 
the  testimony  of  the  one  may  carry  conviction,  so  that  if  he  is 
not  a  competent  witness  there  is  in  the  one  case  prejudicial 
error  in  excluding  him,  in  the  other  there  is  prejudicial  error  in 
allowing   him  to  testify.     While  it  is  true  that  prejudice  must 

x  Ante,  §§  593,594.  prejudicial,  it  will  be  so  held  unless 
2  Morrison  r.  Judge,  1  j  Ala.  1S2;  Ex  some  other  record  recital  overcomes 
farte  Keenan,  21  Ala.  55S;  Thomas  v.  the  inference.  The  courts  that  de- 
De  Gaffenreid,  i-t  Ala  651;  Buford  v.  cided  the  cases  to  which  we  have  re- 
Gould,  35  Ala.  265,  Jackson  v.  Feather  ferred  assert  as  strongly  as  any  others 
River,  etc.,  Co.  14  Cal.  iS;  Norwood  v.  that  error  is  not  presumed  to  be  preju- 
Kenfield,  30  Cal.  393;  State  v.  Patton,  dicial,  but  must  be  affirmatively  shown 
13  Ired.  L.  421;  Wiley  v.  Givens,  6  to  be  prejudicial.  Neither  these  courts, 
Gratt.  (Va.)  277;  Kepler  V.  Conkling.  however,  nor  any  other.-,  hold  that  the 
89  Ind.  392.  The  statements  of  the  prejudicial  nature  of  the  wrong  ruling 
court  in  the  cases  referred  to  must  be  must  be  shown  by  express  recitals  or 
taken,  as  the   long  settled  rule  requires,  direct   statement-. 

with  reference  to  the  facts  and  the  3  Wiseman  :■.  Wiseman.  73  Ind.  112, 
record  of  the  particular  case  in  which  116;  Peterson  :■.  Hutchinson,  30  Ind. 
the  statements  were  made,  and  when  3S;  Morgan  v.  State.  31  Ind.  193;  Belie- 
thus  taken  it  is  evident  that  they  mean  fontaine  R.  R.  Co.  v.  Hunter.  33  Ind. 
no  more  than  that  where  there  is  335;  Thompson  v.  Thompson,  34  Ind. 
enough  in  the  record  to'justify  the  in-  94;  King  v.  Enterprise  Ins.  Co.,  45  Ind. 
ference    that    the    wrong    ruling    was  43;  Carpentier  v.  Thurst,  30  Cal.  123. 


556 


ERROR   INJUDICIAL   PROCEEDINGS. 


directly  or  inferentially  appear  from  the  record,  it  is  also  true 
that  if  the  wrong  ruling  appears  to  affect  a  material  point  ad- 
versely to  the  part)'  complaining,  the  appellate  tribunal  will  not, 
as  a  general  rule,  inquire  specifically  as  to  the  extent  of  the  prej- 
udice.1 The  rule  that  where  there  is  no  prejudice  the  errors  are 
harmless  applies,  of  course,  to  rulings  that  benefit  the  complain- 
ing party,  however  full  of  error  they  may  be.2  Thus,  a  party 
can  not  object  to  a  judgment  rendered  in  his  own  favor  upon  a 
defective  process  against  the  adverse  party,3  nor  upon  instruc- 
tions in  his  own  favor,  nor  for  a  failure  to  assess  all  the  dam- 
ages against  him  to  which  his  adversary  was  entitled,  nor  to  a 
refusal  to  admit  evidence  injurious  to  the  opposite  party  and 
favorable  to  him.  Cases  too  numerous  to  warrant  citation  sup- 
port the  propositions  just  stated.  The  rule  that  error  which  is 
without  prejudice  is  not  available  precludes  a  party  not  injured 
from  making  available  errors  committed  against  other  parties.4 


1  Greene  v.  White,  37  N.  Y.  405; 
Union  Bank  v.  Mott,  39  Barb.  180.  In 
the  case  first  cited  the  court  referred  to 
the  cases  of  Thacher  v.  Jones,  31  Me. 
528;  Lane  f.  Crombie,  12  Pick.  177; 
Clark  7'.  Dutcher,  9  Cow.  674;  Camden, 
etc.,  Co.  v.  Belknap,  21  Wend.  354; 
People  v.  Wiley,  3  Hill,  194.  It  was 
said  in  the  course  of  the  opinion  that, 
"It  is  not  for  the  defendant  to  show 
how  or  to  what  extent  he  was  preju- 
diced. The  existence  of  the  error  es- 
tablishes the  claim  to  relief.  If  the 
plaintiffs  wish  to  sustain  the  verdict  it 
is  for  them  to  show  that  the  error  did 
not  and  could  not  have  affected  it."  In 
the  case  from  which  we  have  quoted 
the  court  had  under  consideration  an 
instruction  upon  a  material  point,  and 
as  to  such  a  case  the  language  of  the 
court  is,  perhaps,  not  too  strong,  but  the 
language  employed  can  not  be  regarded 
as  stating  the  general  rule  with  entire 
accuracy,  inasmuch  as  it  indicates  that 
the  rule  is  much  broader  than  it  can 
be  justly  considered  to  be. 

a  Barker  v.  1  lobbs,  6  Ind.  3S5;  Fischer 
v.  Holmes,  123  Ind.  525;   Robertson  v. 


Caldwell,  9  Ind.  514;  Gaven  v.  Dop- 
man,  5  Cal.  342;  Winona,  etc..  Co.  v. 
Denman,  10  Minn.  267;  Smith  v.  Will- 
iams, 22  111.  357;  Lee  v.  Merrick,  8 
Wis.  229;  Mooney  v.  Hough,  84  Ala. 
80,  4  So.  Rep.  19;  Wright  v.  State,  78 
Ga.  102,  2  S.  E.  Rep.  693;  Hill  v.  Fini- 
gan,  77  Cal.  267,  19  Pac.  Rep.  494; 
Miles  v.  Wikel,  74  Iowa,  712,  39  N. 
W.  Rep.  95;  Hammond  v.  Pinkham,  149 
Mass.  356,  21  N.E.Rep.S7i;  Vickers  v. 
Leigh,  104  N.  C.  248,  10  S.  E.  Rep. 
308;  Northern  Pacific,  etc.,  Co.  v. 
Holmes,  3  Wash.  Ty.  543,  18  Pac.  Rep. 
76;  Kirchcr  v.  Milwaukee,  etc.,  Co.,  74 
Wis.  470,  43  N.  W.  Rep.  4S7;  Dick  v. 
Williams,  130  Pa.  St.  41,  18  Atl.  Rep. 
615;  State  v.  Jackson,  32  So.  Car.  27, 
10  S.  E.  Rep.  769;  Treadwell  v .  Whit- 
tier,  So  Cal.  575,  S.  C.  13  Am.  St.  Rep. 

175- 

3  Cunningham  v.  Smithson,  12  Leign 
(Va.),  32. 

4  Westcotta.  Huff,  18  Ind.  245;  Wiley 
v-  Coovert,  127  Ind.  559;  Duesterberg  v. 
Swartzel,  115  Ind.  180,  17  N.  E.  Rep. 
165;  Herman  v.  McBurney,  66  Ala.  51; 
Seward  v.  Malotte,  1^  Cal.  304;  Hohen- 


HARMLESS  ERROR. 

It  is  no  cause  for  complaint  on  the  part  of  one  defendant  that 
a  judgment  was  erroneously  rendered  against  another  defend- 
ant, or  that  some  other  defendant  was  released  by  the  judgment 
where  no  injury  was  done  him  by  such  release.1 

§  G33.  Right  Result  reached  by  Wrong  Mode— The  statement  in 
the  opening  paragraph  of  the  present  chapter  that  harmless 
errors  are  generally  found  in  rulings  affecting  mere  matters  of 
procedure  is  confirmed  and  illustrated  by  the  cases  which 
assert  the  doctrine  that  where  a  right  result  is  reached  errors 
in  the  mode  pursued  in  reaching  it  are  generally  harmless  ones.2 
Errors  not  affecting  the  final  result  in  cases  where  the  record 
proper  affirmatively  shows  it  to  be  right  may  be  deemed  unin- 
fluential  and  hence  may  be  regarded  as  harmless.  The  doc- 
trine that  a  wrong  ruling  affecting  the  procedure  is  a  harmless 
error  where  a  right  result  is  reached  has  been  applied  in  many 
cases.  One  class  is  represented  by  the  cases  which  hold  that 
where  an  objection  is  taken  by  a  motion  when  a  demurrer 
would  be  appropriate,  the  substitution  of  the  one  mode  of  pro- 
cedure for  the  other  is  a  harmless  error  if  the  result  reached  is 
clearly  right.3     Another  class  is  represented  by  the  cases  which 

thai  v.  Watson,  2S  Mo.  360;  Knox  v.  suit  is  reached  errors  in  the  mode  pur- 
Cleveland,  13  Wis.  245;  Eyre  v-  Cook,  sued  are  ordinarily  regarded  as  harm- 
9  Iowa,  185;  Warner  v.  Whittaker,  6  less  is  closely  allied  to  the  doctrine  that 
Mich.  133;  Schiffer  v-  Adams,  13  Col.  intermediate  errors  may  be  deemed 
572,  22  Pac.  Rep. 964;  H.  G.  OldsWagon  harmless  if  the  final  judgment  or  decree 
Works  v.  Combs.  12  |  Ind.  62,  24  N.  E.  is  right.  {Ante,  §  590.)  It  is.  indeed,  as 
Rep.  589;  Stribling  v.  Splint  Coal  Co.,  a  close  analysis  will  show,  at  bottom, 
31  W.  Va.  S2,  5  S.  E.  Rep.  321;  Kraft-  little  else  than  a  phase  of  that  general 
Holmes,  etc.,  Co.  v.  Crow,  36  Mo.  App.  doctrine. 

28S;  Kansas  City,  etc.,  Co.  v.  Doggett,        3  Holcraft  v.  King,  25   Ind.  352.  y^\ 

67  Miss. 44,  7  So.  Rep.  278.  Lane   v.   State,   27    Ind.    10S,   113.     In 

1  Ahem  v.   McGeary,  79  Cal.  250,  21  Holcraft  v.   King,  supra,   it  was  said: 

Pac.  Rep.  540;   Dickerson  v.  Chrisman,  "The  objection  was  not  properly  taken 

2S  Mo.  134;  Garner  v.  Beauchamp,  20  by  demurrer,  but  a  proper  result  having 

Mo.  318;  Mann  v.   Lewis.  13    W.    Va.  been   attained  by   the    decision    of  the 

215;  Wardv.  Kalfleish,  21  How.Pr.283.  court,  the  case  should  not  be  reversed 

See,  generally.  Elkin  v.  Gregory,  30  So.  for  an  error  of  the  court  in  the  mode  in 

Car.  422,  9  S.  E.  Rep.  335;   Sellers  v.  which  it  was  effected."     Very    similar 

Foster,  27  Neb.  1,  42  N.  W.  Rep.  907;  language   was  used   in   Lane    v.  State, 

Ingram  v.  State,  24  Neb.  33,  37  N.  W.  supra:     "A  proper  result  haying  been 

Rep.  943.  readied  by  the  demurrer,  we   can   not," 

1  The  doctrine  that  where  a  right  re-  it  was   said   by    the  court,  "reverse  the 


r>:>H 


ERROR  IN   JUDICIAL  PROCEEDINGS. 


liold  that  where  a  right  result  is  reached  the  error  in  trying  the 
case  upon  pleadings  where  pleadings  are  inappropriate  is  harm- 
less.1 Still  another  class  is  represented  by  the  cases  which 
hold  that  where  the  trial  court  strikes  out  a  motion  when  the 
appropriate  procedure  is  to  overrule  it,  the  error  in  the  mode 
pursued  is  not  sufficient  to  reverse  the  judgment.2  The  doctrine 
lias  been  applied  to  the  proceedings  of  statutory  tribunals,  and 
their  decisions  have  been  upheld,  although  the  mode  of  pro- 
cedure adopted  was  erroneous.3  A  strong,  and,  perhaps,  an 
unsafe  extension  of  the  rule  is  made  by  the  cases  wherein  it  is 
held  that,  although  it  is  erroneous  to  submit  to  the  jury  a  writ- 
ten contract  for  construction  the  error  is  not  available  if  it  ap- 
pears that  the  jury  gave  a  correct  construction  to  the  contract.4 
In  another  case  it  was  held  harmless  error  to  submit  a  question 


judgment  merely  because  it  was  not  at- 
tained in  a  different  mode."  In  Mc- 
Grew  v.  McCarty,  7S  Ind.  496,  the 
court  said:  "The  proper  practice  would 
have  been  to  demur  to  the  complaint. 
Where  there  is  no  personal  liability  and 
the  entire  right  of  action  depends  upon 
the  validity  of  the  lien,  which  affirma- 
tively appears  tc  be  invalid,  the  proper 
practice  is  to  demur.  Lawton  v.  Case, 
73  Ind.  60.  But  where  a  right  result  is 
reached,  no  harm  is  done,  although  an 
inappropriate  remedy  is  adopted.  Judg- 
ments are  not  reversed  because  of  harm- 
less errors." 

1  Gray  v-  Robinson,  90  Ind.  527,  532, 
citing  Bales  v.  Brown,  57  Ind.  282.  In 
the  case  first  named  it  was  said:  "But 
the  controversy  was  heard  and  deter- 
mined upon  the  evidence.  In  such  a 
case  the  pleadings  and  rulings  thereon 
are  harmless.  When  a  correct  result 
is  leached  a  cause  will  not  be  reversed 
for  an  error  in  the  mode  of  reaching  it." 

2  Matthews  v-  Droud,  114  Ind.  268, 
271;  Logan  v.  Kiser,  25  Ind.  393.  In 
the  case  first  cited  the  court  said:  "  The 
striking  out  of  the  motion  for  a  venire 


de  novo  was  not  the  proper  method  of 
disposing  of  that  motion,  but  as  a  right 
result  was  reached,  a  mistake  in  the 
mode  of  reaching  it  is  not  available  er- 
ror." 

3  Neptune  v.  Taylor,  10S  Ind.  459, 561 ; 
City  of  Logansport  v.  Shirk  (Ind.),  2S 
N.  E.  Rep.  538,  541.  In  the  case  last 
cited  it  was  said:  "The  proper  con- 
clusion was  reached  and  judgment  ren- 
dered under  the  facts  disclosed  by  the 
record,  and  it  is  immaterial  by  what 
method  it  is  arrived  at.  The  proper 
conclusion  having  been  reached  the 
judgment  will  not  be  reversed." 

4  Martineau  v.  Steele,  14  Wis.  (2d  ed.) 
295,  300.  In  the  case  cited  the  court 
said:  "We  suppose  there  can  be  no 
doubt  that  it  was  the  duty  of  the  county 
court  to  construe  the  written  agreement 
instead  of  leaving  the  question  of  its 
proper  construction  to  the  jury.  The 
jury,  however,  placed  the  true  construc- 
tion upon  the  writing — the  one  which 
the  court  should  have  placed  upon  it, 
and  therefore  this  error  becomes  imma- 
terial, since  it  could  not  have  prejudiced 
the  appellant." 


HARMLESS   l.KK ok.  55»J 

of  law  to  the  jury  for  decision,  for  the  reason  that  the   jury  cor- 
rectly decided  the  question  and  a  right  result  was  reached.1 

§  634.  Limitations  of  the  Rule  that  there  is  no  Available  Error 
where  a  Right  Result  is  reached— It  must,  as  we  suppose,  be  true 
that  the  rule  stated  in  the  preceding  paragraph  is  not  entirely 
without  limitation.  It  seems  quite  clear  that  there  may  be 
cases  where  a  right  result  is  reached,  but  errors  in  the  mode  of 
reaching  it  may  be  so  grave  as  to  be  regarded  as  prejudicial. 
If,  for  instance,  the  court  should  deny  a  jury  trial  in  a  case 
where  the  party  was  entitled  to  it,  the  ruling  would,  as  a  gen- 
eral rule,  be  available  as  error  even  though  the  appellate  tri- 
bunal might  be  satisfied  that  the  trial  court  reached  the  proper 
conclusion  and  rendered  the  appropriate  judgment.  It  seems, 
also,  that  there  may  be  cases  where  there  is  such  a  clear  and 
wide  departure  from  the  established  rules  of  evidence  that  the 
judgment  must  fall,  although  it  appears  to  be  right.  If  there 
are  no  limitations  upon  the  rule  that  a  right  result  makes  harm- 
less all  intermediate  rulings  the  consequence  must  be  that  there 
may  be  cases  wherein  a  party  is  denied  a  right  to  have  his 
cause  tried  and  determined  as  the  law  directs.  The  general  rule, 
however,  is  well  established  and  is  a  strong  one,  so  that  a  party 
who  attempts  to  escape  its  force  must  make  a  very  clear  case. 

§  635.  Uninfluential  Error — There  may  be  a  wrong  ruling  and 
no  available  error,  for  the  reason  that  the  ruling  may  have  no 
influence  upon  the  substantial  rights  of  the  party  who  makes 
complaint.-     It  is  difficult,  if  not  impossible,  to  accurately  lay 

1  Consolidated  Coal  Co.  v.  Schacfer  the  judgment."  For  other  decisions 
(111.),  25  N.  E.  Rep.  7SS.  The  court,  in  upon  the  general  subject,  see  Hunter  v. 
the  case  cited,  conceded  that  the  in-  Harris,  24  111.  App.  637;  Ochs  v.  Peo- 
struction  did  submit  a  question  of  law  pie,  124  111.  399;  Marvin  v-  Universal, 
to  the  jury,  but  held  the  error  not  avail-  etc..  Co.,  S5  N.  Y.  27s. 
able,  saying:  "But  as  the  jury  gave  a  2  Holmes  v.  Fairbank,  17  Wis.  434; 
correct  answer  to  the  question  pro-  Menk  v.  Steinfort,  3g  Wis,  370;  Alex- 
pounded  to  them,  and  rendered  a  verdict  andero.  Oshkosh,33  Wis.  277;  Alkan  v. 
that  was  just  and  right  under  the  law  New  Hampshire,  etc.,  Co.,  53  Wis.  136; 
and  the  evidence,  it  is  not  perceived  Gready  v.  Ready.  40  Wis.  47S;  Gallo- 
that  the  action  of  the  court  in  this  re-  way  v.  Week,  54  Wis.  604.  See.  gen- 
gard  affords  good  ground  for  reversing  erally.  Smith   p.    Eaton,   50   Iowa,  4SS: 


-,;,,  ERROR   IN  JUDICIAL  PROCEEDINGS. 

down  any  general  rule  for  determining  when  the  wrong  ruling 
can  be  considered  so  influential  as  to  constitute  available  error. 
It  may,  however,  be  said  that  where  it  appears  from  the  record 
that  there  was  no  right  which  could  be  impaired  or  destroyed 
by  the  ruling  it  may  be  regarded  as  destitute  of  influence,  al- 
though it  may  be  radically  erroneous.  Thus,  a  wrong  ruling 
on  an  entirely  immaterial  issue  is  generally  uninfluential.1  So 
where  a  party  obtains  all  he  is  entitled  to  receive  the  error  is 
without  influence.2  The  same  general  doctrine  prevails  where 
damages  are  assessed  upon  the  wrong  theory  and  include  im- 
proper items,  but,  in  the  aggregate,  the  recovery  awarded  is  no 
more  than  that  to  which  the  successful  party  was  rightfully  en- 
titled.3 The  general  doctrine  applies  to  a  case  wherein  the 
only  issue  is  as  to  the  title  to  personal  property  and  an  errone- 
ous ruling  is  made  concerning  the  value  of  the  property  in  con- 
troversy.4 It  may  be  observed  of  the  case  last  referred  to  that 
the  ground  upon  which  it  proceeds  is  that  the  only  ruling  that 
could  be  influential  would  be  one  affecting  the  only  controverted 
point,  namely,  the  title  to  the  property  in  dispute.  A  case  in- 
volving the  title  to  property  falls  under  the  general  rule  that 
uninfluential  errors  are  harmless  where  it  appears  that  the  party 
who  complains  has  no  interest  in  the  property  disposed  of  by 
the  judgment  or  decree.5  What  errors  shall  or  shall  not  be 
deemed  influential,  must,  we  may  say  in  conclusion,  be  deter- 
mined upon  the  facts  and  record  in  the  particular  case,  for  it  is 
not  possible  to  formulate  a  general  rule  for  determining  what 
errors  are  influential  and  what  are  without  influence. 

Dawson  v.  Wisner,  n  Iowa,  6;  Granger  W.    Rep.  29.     See,   upon    the   general 

v.  Buzick,  3  G.    Greene    (Iowa),    570;  subject,  Allen  v.  Commonwealth  (Ky.), 

Cooper  v.  Mills  County,  69  Iowa,  350;  12  S.  W.  Rep.  582;   State  v.  Bruder,  35 

Heckle  v.  Grewe,  125  111.  58,  61;  Frank-  Mo.  App.475;  Allen  w.Etheridge,  84  Ga. 

fort  Bridge  Co.  v.  Williams,  9  Dana,  550,  11  S.  E.  Rep.  136. 

403,  35  Am.  Dec.  155;  Ward  v.  Ringo,  *  Foster  v.  Berkley,  8  Minn.  351. 

2   Texas,  420,  S.  C.  47  Am.  Dec.  654.  5  Case  v.  Kelly,  133   U.   S.  21.     See, 

1  Dabbs  v.  Dabbs,  27  Ala.  646;  Dress-  generally,  Ailing  v.  Wenzel,  133  111.  264, 
lcr  v.  Davis,  7  Wis.  527;  Thompson  v.  24  N.  E.  Rep.  551;  Gage  v.  DuPuy,  132 
Lyon,  14  Cal.  39.  111.  134.  24  N-  E-  RcP-  S66;  Telford  v. 

2  Denny  v.  Moore,  13  Ind.  418.  Garrels,  132  111.  550,  24  N.  E.  Rep.  573; 

3  Mood  v.  Knox.  8  La.  Ann.  73;  Harrington  v.  Sedalia,  9S  Mo.  583,  12 
Stevens  v.   Wolf,   77  Texas.  215,  14  S.  S.  W.  Rep.  342. 


HARMLESS   ERROR  561 

§  636.  Nominal  Damages— Failure  to  Assess— The  doctrine  run- 
ning throughout  the  adjudged  cases  is  that  a  wrong  ruling  is 
not  available  as  error  unless  it  does  harm  in  a  material  degree 
to  the  substantial  rights  of  the  complaining  party.  It  is  not 
enough  that  there  is  harm,  it  must  be  so  important  as  to  merit 
the  consideration  of  the  appellate  tribunal  and  to  take  some- 
thing of  more  than  nominal  value  from  the  party  who  alleges 
error.  It  is  upon  this  principle  that  it  is  held  that  the  failure 
to  assess  nominal  damages  may  be  placed  in  the  category  of 
harmless  errors.1  But  there  may  be  cases  where  a  right  of  im- 
portance is  to  be  vindicated  by  the  assessment  of  nominal  dam- 
ages, and  where  this  is  so  the  failure  to  assess  nominal  dam- 
ages may  be  prejudicial,  not,  indeed,  because  of  the  amount 
involved  but  because  of  the  right  which  requires  vindication 
and  establishment.  Thus,  where  a  party  sues  to  prevent  the 
wrongful  seizure  and  occupancy  of  his  land,  or  to  prevent  the 
destruction  of  his  right  in  a  highway,  there  may  be  more  than 
harmless  error  in  a  ruling  denying  the  recovery  of  nominal 
damages.2  The  reason  of  the  rule  that  there  mav  be  preiudi- 
cial  error  in  some  cases  where  there  is  apparently  nothing  more 
than  a  wrong  ruling  affecting  the  right  to  nominal  damages,  is 
that  the  right  which  the  damages  represent  may  be  lost  unless 
damages  are  assessed.3  This  principle  is  illustrated  in  cases 
where  it  is  necessary  for  a  party  to  bring  an  action  and  recover 
in  order  to  prevent  a  claim  from  ripening  into  a  right  by  long 
continued  possession  or  use.  The  members  of  the  class  of 
cases  under  immediate  mention  form,  however,  exceptions  to 
the  general  rule,  for  that  rule  is  that  where  there  is  a  ruling 
affecting  only  the  right  to  nominal  damages,  the  ruling,  though 
wrong,  is  assigned  a  place  in  the  general  class  denominated 
harmless  errors. 


1  Mahonev   v.  Robbins,  49  Ind.  146;  v.    Haven.  65    Iowa.  359;    Norman    z. 

Estep  v.  Estep,  23  Ind.  114;   Hacker  v.  Winch,  65  Iowa.  ^63. 

Blake,  17  Ind.  97;  Small  v.  Reeves,  14  2  Ross  v.  Thompson,  7S  Ind.  90.  97. 

Ind.  163;  Tate  v.  Booe,  9  Ind.  13;  Patron  3  Webb  v.  Portland,  etc.,  Co.,  3  Sumn. 

v.  Hamilton,  12  I  ml.  256;  Black  v.  Coan,  (U.S.Cir.),  189;  Faust  v.  City  of  Hunt- 

4S  Ind.  3S5;  Wimberg v.  Schwegeman,  ington,  91  Ind. 493,  496;  Kyle*  Board, 

97  Ind.  528;    Watson  v.  Van  Meter.   43  94  Ind.  115.  Il8. 
Iowa,  76;  Case  Threshing- Machine  Co 

36 


562 


ERROR    IX  JUDICIAL  PROCEEDINGS 


§  (j.°>7.  Rulings  on  Demurrer — Where  the  record  shows  that  the 
judgment  rests  entirely  on  good  paragraphs  of  a  complaint  an 
error  in  overruling  a  demurrer  to  a  bad  paragraph  will  be  re- 
garded as  harmless.1  So,  where  the  record  affirmatively  shows 
that  no  harm  resulted  from  overruling  a  demurrer  to  one  of  sev- 
eral paragraphs  of  an  answer  the  error  will  be  deemed  not 
prejudicial.2  But  it  is  to  be  observed  of  cases  of  the  class  last 
referred  to  that  the  record  proper  must  show  that  the  ruling 
was  harmless,  for  the  court  will  not  search  through  the  evidence 
for  the  purpose  of  ascertaining  whether  harm  did  or  did  not 
result.3  Where  a  demurrer  is  sustained  to  one  of  several  par- 
agraphs of  an  answer  the  error  is  harmless  if  there  are  other 
paragraphs  under  which  the  same  evidence  is  admissible.4     If 


1  Burckham  v-  Burk,  96  Ind.  270; 
Tracewell  z>.  Farnsley,  104  Ind.  497; 
Bidinger  v.  Bishop,  76  Ind.  244;  Burgett 
v.  Teal,  91  Ind.  260;  Reed  v.  Dougan,  54 
Ind.  306;  Peery  v.  Greensburgh,  etc., 
Turnpike  Co.,  43  Ind.  321;  Blasingamc 
t>.  Blasingame,  24  [nd.86;  Stone  v.  State, 
75  Ind.  235;  Martin  v.  Cauble,  72  Ind. 
67;  Cincinnati,  etc.,  Co.  v.  Gaines,  104 
Ind.  526;  Smith  v.  McKean,  99  Ind. 
101;  Bloomfield  R.  R.Co.ti.  Van  Slike, 
107  Ind.  480;  Hawley  v.  Smith,  45  Ind. 
183,  184;  Stanton  v.  State,  82  Ind. 
463;  Johnson  v.  Ramsay,  91  Ind.  189, 
196;  Harnett  v.  Fearv,  101  Ind.  95,  98; 
Wolf  v.  Schofield,  3S  Ind.  175;  Knox 
Co.  Bank  v.  Lloyd,  iS  Ohio  St.  353; 
Trammel  v.  Chipman,  74  Ind.  474;  Snell 
v.  Hancock,  11  Iowa,  117.  But  the  rec- 
ord must  affirmatively  show  that  the 
judgment  rests  on  the  good  paragraphs. 
See  post,  § . 

'A  Walling  v.  Burgess,  122  Ind.  299, 
30S,  citing  Over  v.  Shannon,  75  Ind. 
352;  Nixon  v-  Campbell,  106  Ind.  47; 
King  v.  Davis,  101  Ind.  75;  Sohn  v. 
Cambern,  106  Ind.  302. 

3  Pennsylvania   Co.   v.   Marion,    104 

Intl.  239;  Belt  R.  Co.  v.  Mann,  107  Ind. 

Fleetwood  v.  Brown,  109  Ind.  567; 

Rush  v-  Thompson,  112  Ind.  15S;   Ryan 


v.  Hurley,  119  Ind.  115;  Eagle  Machine 
Works  v.  Arens,  123  Ind.  233;  Weir  v. 
State,  96  Ind.  311,315;  Wilson  v.  Town 
of  Monticello,  85  Ind.  10;  Sims  v.  City  of 
Frankfort,  79  Ind.  446,449;  Conyers  v. 
Mericles,  75  Ind.  443;  Johnson  v.  Breed- 
love,  72  Ind.  36S;  Over  v-  Shannon,  75 
Ind.  352;  Pennsylvania  Co.  v-  Poor,  103 
Ind.  553;  Godfrey  v.  Craycraft,  Si  Ind. 
476;  Travelers  Ins.  Co.  v.  Noland,  97 
Ind.  217. 

4  Harding  v.  Cowgar,  127  Ind.  245; 
Lawrenceburgh,  etc.,  Co.  v.  Hinke,  119 
Ind.  47;  Whiteman  v-  Harriman,  S5  Ind. 
49;  Luntz  v.  Grevc,  102  Ind.  173;  City 
of  Elkhart  v.  Wickwire,  87  Ind.  77; 
Long  v.  Williams,  74  Ind.  115;  Lester 
v.  Brier,  SS  Ind.  296;  George  v.  Brooks, 
94  Ind.  274;  Madgett  v.  Fleenor,  90  Ind. 
517;  Moore  v.  Boyd,  95  Ind.  134;  Mc- 
Clelland v.  Louisville,  etc.,  Co.,  94  Ind. 
276;  Hazelett  v.  Butler  University,  84 
Ind.  230;  City  of  Aurora  v.  Fox,  78  Ind. 
1;  Ohio,  etc.,  Co.  v.  Nickless,  73  Ind. 
3S2;  Moral  School  Township,  74  Ind. 
93;  Masons.  Mason,  102  Ind. 38;  Nixon 
v.  Beard,  m  Ind.  137;  Henderson  v. 
Henderson,  no  Ind.  316;  Ralston  v. 
Moore,  105  Ind.  243.  The  earlier  cases 
are  collected  in  Ripley's  Indiana  Digest, 
pp.  5S5,  586.     There   is,  it  is  important 


HARMLESS   ERROR. 


563 


the  answer  to  which  a  demurrer  is- addressed  is  bad,  no  harm 
is  done  in  sustaining  the  demurrer,  although  the  demurrer  may 
not  state  a  sufficient  cause  or  be  properly  framed.1  Where 
tacts  are  admitted  in  an  agreed  statement  an  error  in  overrul- 
ing a  demurrer  to  a  bad  paragraph  of  answer  is,  as  it  has  been 
held,  rendered  harmless.-  If  the  record  clearly  shows  that  a 
defendant  was  awarded  the  relief  claimed  in  his  answer  an 
error  in  sustaining  a  demurrer  will  not  be  available.3  It  is  held 
that  where  the  record  affirmatively  shows  that  the  trial  court 
excluded  all  evidence  under  a  paragraph  to  which  a  demurrer 
was  erroneously  overruled  that  error  is  rendered  harmless.'  It 
is  held  in  some  of  the  cases  that  if  facts  alleged  in  a  pleading 
are  found  to  be  untrue  an  error  in  ruling  upon  a  demurrer  ad- 
dressed to  it  is  not  available  for  the  reversal  of  the  judgment.5 


to  note,  a  very  essential  difference  be- 
tween sustaining  a  demurrer  and  over- 
ruling a  demurrer.     See  post,  §  669. 

1  Davis  v.  Green,  57  Ind.  493;  Had- 
ley  v.  State,  66  Ind.  271;  Palmer  v. 
Haves,  112  Ind.  289. 

2  State  v.  Blanch,  70  Ind.  204. 

3  Putnam  v.  Tennyson,  50  Ind.  456. 

4  State  v.  Julian,  93  Ind.  292. 

5  Souders  v.  Jeffries,  9S  Ind.  31;  Bart- 
lett  v.  Pittsburgh,  etc.,  Co.,  94  Ind.  281; 
State  v.  Julian,  93  Ind.  292;  Cooper  ■?. 
Jackson,  99  Ind.  566;  Keegan  v.  Car- 
penter, 47  Ind.  597.  We  think,  how- 
ever, that  the  fact  that  a  pleading  is 
found  to  be  untrue  is  not  always  and  of 
itself  sufficient  to  show  the  error  to  be 
harmless.  It  is  to  be  regarded  as  prej- 
udicial unless  it  appears  from  the  rec- 
ord proper  that  the  judgment  was  not 
influenced  in  any  material  particular  by 
the  bad  pleading.  The  decisions  do 
not,  as  we  believe,  sustain  the  broad 
statement  that  if  the  pleading  is  found 
to  be  untrue  the  error  is  harmless.  In 
State  v.  Julian,  supra,  the  question  was 
not  before  the  court,  for  there  all  evi- 
dence under  the  bad  pleading  was  ex- 
cluded, so  that  it  was  perfectly  clear 
that  the  ruling  holding  it  good  was  un- 


influential.  In  Nave  v.  Wilson,  ^3  Ind. 
294,  cited  as  sustaining  the  doctrine  we 
disapprove,  the  same  point  was  ruled 
as  that  which  the  decision  turned  upon 
in  State  v.  Julian.  In  Blessing  v-  Blair, 
45  Ind.  546,  also  cited  in  support  of  that 
doctrine,  the  verdict  was  for  the  plain- 
tiff, and  he,  of  course,  suffered  no  injury. 
The  point  decided  in  Hawley  v.  Smith, 
45  Ind.  1S3,  and  in  all  the  other  cases 
cited  in  State  v.  Julian,  except  those 
just  named,  and  except  McComas  v. 
Haas,  93  Ind.  276,  and  Keegan  v.  Car- 
penter, supra,  was  that  an  error  in  rul- 
ing upon  a  demurrer  to  a  bad  paragraph 
of  a  pleading  is  harmless  where  the 
record  proper  affirmatively  shows  that 
the  judgment  rests  on  a  good  para- 
graph. In  Keegan  v.  Carpenter,  supra, 
the  same  ruling  was  made  as  in  Bless- 
ing v.  Blair,  supra,  and  that  was,  in 
substance,  that  as  the  record  proper 
affirmatively  showed  that  theparty  who 
pleaded  the  bad  pleading  was  denied 
all  benefit  the  adverse  part}'  was  nut 
harmed.  In  McComas  v.  Haas,  supra, 
the  answer  of  the  jury  to  interrogatories 
clearly  showed  that  the  defendant  who 
pleaded  the  answer  to  which  a  demurrer 
was  erroneously  overruled  received  no 


56J  ERROR   IX  JUDICIAL  PROCEEDINGS. 

§  638.  Resorting  to  the  Evidence  to  Avoid  the  effect  of  an  Er- 
roneous Ruling  upon  Demurrer— The  intimation  in  some  of  the 
cases  that  the  evidence  may  be  searched  in  order  to  determine 
whether  or  not  a  ruling  upon  demurrer  was  harmless  can  not,  as 
believe,  be  regarded  as  asserting  a  correct  general  rule.  It 
is  possible  that  where  there  is  absolutely  no  conflict  in  the  evi- 
dence, it  may  be  determined  from  an  inspection  of  the  evidence, 
but  the  doctrine  certainly  can  not  be  correctly  applied  in  cases 
where  the  evidence  is  conflicting.  We  believe  that  as  a  general 
rule  resort  to  the  evidence  is  not  proper  or  permissible.  If  a 
party  tenders  a  bad  pleading  he  has  no  right  to  insist,  for  the  pur- 
pose of  saving  a  judgment  in  his  favor,  that  the  pleading  although 
bad  is  shown  by  the  evidence  to  have  done  no  injury  to  his  ad- 
versary. The  party  who  files  a  pleading  does  so  because  he 
conceives  that  it  will  secure  him  some  advantage,  and  an  ad- 
vantage he  can  not  obtain  without  a  corresponding  injury  to  his 
adversary.  Nor  is  it  just  to  the  court  or  to  the  adverse  party 
for  such  a  party  to  compel  the  decision  of  a  question  as  one  of 
evidence  when  he  himself  put  it  forward  as  one  of  pleading. 
There  is  no  justice  in  driving  a  party  from  the  certainty  of 
pleading  to  the  uncertainty  of  evidence.  There  is  no  tinge  of 
right  in  a  claim  that  the  court  or  the  adverse  party  must  ex- 
plore the  evidence  to  determine  whether  a  ruling  upon  demurer 
was  or  was  not  harmless.  The  object  of  requiring  pleadings 
would  be  in  a  great  measure  defeated  if  parties  were  allowed 

benefit  from  that  answer  and  that  the  thereto  was  harmless."     The  decision  in 
ruling  did  no  injury  to  the  plaintiff.    In  Bartlett  v.  Pittsburgh,  etc.,  Co.,  supra, 
that  case  it  was  expressly  decided  that  may  be  sustained  upon  the  ground  that 
resort   could    not    he  made  to  the  evi-  the  record  proper  showed  that  no  harm 
dence.     In  State  v.  Jeffries,  supra,  the  was  done  the  appellant.     The  effect  of 
judgmenl  went  against  the  plaintiffupon  the  decision  in  Cooper t>.  Jackson,  supra, 
his   complaint   so  that   the  answer  was  probably  is   that   the  evidence  may  he 
influential.     It  was,  therefore,  un-  looked  to  in  order  to  determine  whether 
isary  to  say  in  that  case  anything  a  ruling  on  demurrer  is  or  is  not  harm- 
the  effect  of  proving  an  answer  to  less,  but  as  will  clearly  appear  from  the 
be  untrue.     The  point  decided,  and  the  authorities  referred  to  in   the  next    par- 
only  point  in  judgment,  is  thus  exhibited  agraph,  this  doctrine  is  not  the  true  one. 
in   the  opinion:     "As   the  court  found  It  may,  perhaps,  be  correct  if  qualified 
and  gave  judgment  againsl  the  appellee  and  limited  by  restricting  it  to  a  case 
■  his  complaint  the  error,  if  any,  of  where  there  is    no  conflict  in  the  evi  - 
overruling    the    appellant's     demurrer  dence. 


HARMLESS   ERROR. 


565 


to  invoke  the  aid  of  evidence  to  make  bad  pleadings  good  or 
rescue  them  from  condemnation.  It  is  carrying  the  rule  quite 
far  enough  to  hold  that  if  the  record  proper,  as  a  special  finding, 
a  special  verdict,  or  the  like,  affirmatively  shows  the  harmless- 
ness  of  an  erroneous  ruling  the  error  will  not  avail  the  party 
against  whom  it  was  committed.  Beyond  that  it  can  not  be 
carried  without  producing  discord  and  working  injury.  The 
later  decisions  sustain  our  views  and  supply  strong  reasons 
supporting  them.1     It  is  quite  clear  that  where  a  demurrer  is 


1  In  the  case  of  Ryan  v.  Hurley,  119 
Ind.  115,  the  court  in  speaking  of 
an  erroneous  ruling  upon  demurrer 
said:  "We  can  not  look  into  the  evi- 
dence to  determine  whether  injury  did 
or  did  not  result  from  such  error."  In 
McComas  v.  Haas,  93  Ind.  276,  281,  it 
was  said:  "But  the  sufficiency  of  a 
paragraph  of  answer  when  demurred 
to  must  be  determined  upon  the  facts 
6tated  therein  and  not  upon  matters 
elsewhere  appearing  in  the  record.  The 
effect  of  overruling  a  demurrer  to  a  bad 


of  law  involved  in  the  ruling  was  acted 
upon  throughout  the  case  and  the  de- 
fendant is  not  bound  to  again  present 
the  question-."  The  cases  of  Friddle 
v.  Crane,  68  Ind.  5S3;  Johnson  v.  Breed- 
love,  72  Ind.  36S;  Abell  v.  Riddle,  75 
Ind.  345;  Conyers  v.  Mericles,  75  Ind. 
443,  and  Sims  v.  City  of  Frankfort.  79 
Ind.  446,  were  cited.  It  was  said  in 
Pennsylvania  Co.  v.  Poor,  103  Ind.  553, 
555:  "The  court  can  not  examine  evi- 
dence to  determine  questions  presented 
by  demurrer,  for  the  demurrer  presents 


paragraph  of  answer  is  to  adjudge  that  if    the   question    fully,    and   the   question 


the  facts  therein  are  proved,  the  defend- 
ant is  entitled  to  a  verdict,  however  in- 
sufficient such  facts  may  be  to  constitute 
a  defense  to  the  action."  In  thecase>of 
Wilson  c.  Town  of  Monticello,  85  Ind. 
10,  20,  the  question  was  as  to  the  right  to 
resort  to  the  evidence  to  obviate  the  ef- 
fect of  an  error  in  ruling  upon  a  de- 
murrer to  an  answer,  and  it  was  held  that 
resort  could  not  be  made  to  the  evidence, 
the  court  saying:  "Where  good  answers 
are  held  on  demurrer  or  are  rejected  on 
motion,  the  defendant  is  entitled  to  the 
benefit  of  the  exception  reserved  upon 
that  ruling,  unless  there  are  other  an- 
swers entitling  him  to  put  in  evidence 
substantially  the  same  matters  as  are 
pleaded  in  the  answers  held  bad  or  re- 
jected. The  evidence  is  not  to  be  looked 
to  for  the  purpose  of  discovering 
whether  the  ruling  did  or  did  not  do 
him  harm.  Where  a  plea  is  struck 
down  the  presumption  is  that  the  rule 


presented  must  be  decided  according  to 
the  record."  To  the  same  effect  are  the 
cases  of  Belt  R.  R.  Co.  v.  Mann,  107 
Ind.  S9;  Rush  v.  Thompson,  112  Ind. 
158;  Fleetwood  v.  Brown,  109  Ind. 
567.  In  the  case  last  cited  it  was  said, 
in  speaking  of  the  cases  of  Campbell  v. 
Nebeker,  58  Ind.  446;  Layman  v. 
Shultz,  60  Ind,  541;  Gallagher  v.  Him- 
elberger,  57  Ind.  63,  and  Landwerlen  v. 
Wheeler,  106  Ind.  523,  that:  "It  was 
not  therein  held,  nor  intended  to  be 
held,  that  this  court  may  look  to  the 
evidence  to  ascertain  whether  or  not 
the  sustaining  of  a  demurrer  to  a  good 
paragraph  of  an  answer  was  a  harmless 
error.  It  has  never  been  so  held  by 
this  court.  On  the  contrary,  the  hold- 
ing has  been  that  the  evidence  is  not  to 
be  looked  to  for  the  purpose  of  discover- 
ing whether  the  ruling  did  or  did  n  t 
do  harm." 


566  ERROR  IN  JUDICIAL  PROCEEDINGS. 

sustained,  a  resort  to  the  evidence  can  not  be  had,  since  the 
effect  of  such  a  ruling  is  to  assert  that  no  evidence  of  the  tacts 
alleged  is  competent,  and  the  presumption  upon  which  the 
parties  had  a  right  to  act  is  that  the  theory  announced  in  the 
ruling  on  the  pleadings  would  be  adhered  to  throughout  the  en- 
tire case.  The  question  is  not  very  different  where  a  demurrer 
i-  <  rroneously  overruled,  inasmuch  as  the  presumption  is  the 
same  as  that  which  prevails  in  cases  where  the  demurrer  is  sus- 
tained. Parties  are  not  bound  to  anticipate  changes  in  the 
views  of  the  court,  nor,  indeed,  have  they  any  right  to  act  upon 
the  supposition  that  the  court  will  depart  from  the  theory  out- 
lined in  its  rulings  upon  demurrer.1 

§  639.   Rulings  on  Motions  to  strike  out  or  reject  Pleadings — It 

is  not  an  available  error  to  deny  a  motion  to  strike  out  surplus- 
age or  redundant  matter  in  pleadings  or  to  deny  a  motion  to 
strike  out  a  pleading  because  it  is  the  same  as  other  pleadings 
or  embraced  in  them.2  Although  an  erroneous  ruling  may  be 
made  in  sustaining  a  motion  to  strike  out  it  will  be  harmless  if 
enough  is  left  to  entitle  the  party  to  give  evidence  of  all  the 
material  facts  originally  pleaded.'5  It  is  error  to  sustain  a  mo- 
tion to  strike  out  where  the  parts  of  the  pleading  ordered  to  be 
struck  out  are  material  and  necessary.4  There  is,  of  course, 
no  error  in  sustaining  a  motion  to  strike  out  or  reject  where  the 

1  Ante,    (j    591.     '•  Presumption    that  fordsville    v.    Brunda<xe,    57    Ind.   2f>2; 

the  court  adheres  to  a  declared  or  indi-  Sprague    t.    Pritchard,    108     Ind.    491; 

cated    theory."      Wilson    v.   Town   of  Mires  v-  Alley,  51   Ind.  507;     House  v. 

Monticello,  85  Ind.  10,  20.  McKinney,    54    Ind.    240;    George   v. 

1  Walker    v.  'Larkin,    127    Ind.    100;  Brooks,  94  Ind.  274;   Hoke  v.  Apple 

ling  v.  Watson,  91  Ind.  57S;  Owen  92  Ind.  570;     Smith  v.  Martin,  So  Ind. 

r.  Phillips,  73  Ind.  2S4;  Lowryz).  McAl-  260;    Hewitt  v.  Powers,   84   Ind.  295; 

86  Ind.  543;  Goodwine  v.  Miller,  Strong  v.  Taylor  School  Tp.,  79  Ind. 

32    Ind.    419;     Turner  v.  Camphell,  59  208. 

Ind.  279;   City  of  Evansville  i\  Thayer,  3  Humphreys  v.  Stevens,  49  Ind.  491; 

59  Ind.  324;  McFalW'.  Howe  Co. ,90  Ind.  Board  v.  Reynolds,  44  Ind.  509. 

Losey  v.  Bond,  94  Ind. 67;   Morris  *  Clark  v.  Jeffersonville,  etc.,  Co.,  44 

v.  Stern,  So  Ind.  227;   Clark  v.  Jefferson-  Ind.  24S;   Chicago,  etc.,    Co.    v.    Sum- 

ville.    etc.,    Co.,    44    Ind.   24S;     Dill    t\  mers,  113  Ind.  10;   Stanton  v.  State,  74 

O'Ferrell.  45  Ind.  26S;     City  of  Craw-  Ind.  503. 


HARMLESS  ERROR.  fj(;7 

part  of  the  pleading  objected  to  by  the  motion  is  redundant, 
immaterial  or  irrelevant.1 

§  640.  Pleadings  defective  in  Form — Defects  in  form  are  not 
available  for  the  overthrow  of  pleadings  upon  appeal.  The 
statute  provides  that  matters  of  form  shall  be  disregarded  and 
that,  as  to  such  matters,  pleadings  that  might  be  amended  be- 
low shall  be  deemed  to  be  amended  in  the  higher  court.2  The 
provisions  of  the  code  have  been  liberally  applied.3  The  prac- 
tical difficulty  in  applying  the  provisions  of  the  statute  arises  in 
cases  where  the  borderland  between  matters  of  substance  and 
matters  of  form  is  so  narrow  that  the  side  on  which  the  particu- 
lar case  falls  can  scarcely  be  discerned.  Where  the  defect  is 
one  of  substance  and  not  of  form  the  statutory  provision  does 
not  apply.4 

§  641.  Rulings  in  admitting  and  excluding  Evidence — Where  a 
point  upon  which  evidence  is  excluded  is  conceded  by  an  ad- 
mission made  during  the  trial,  or  by  an  admission  in  the  plead- 
ings, as  well  as  where  it  is  established  by  uncontradicted  evi- 
dence, error  in  excluding  additional  evidence  is  generally  said  to 
be  harmless,  although  it  would,  perhaps,  be  more  accurate  to  say 
there  is   no   error.5     Permitting  the   introduction   of  evidence 

1  Ketcham  v.  Brazil  Block  Coal  Co.,  67  Ind.  236;  White  v.  Stelhvagon,  54 
88  lnd.  515;  Board  v.  Huff,  91  Ind.  333;  Ind.  1S6;  Donellan  v.  Hardy,  57  Ind. 
Gheens  v.  Golden,  90  Ind.  427;  Robin-  393;  Bremmerman  v.  Jennings,  101  Ind. 
son  v.  Snyder,  74  Ind.  no;  Lake  Erie,  253;  Carver  v.  Carver,  97  Ind.  497; 
etc.,  v.  Fix,  SS  Ind.  381;  Boyce  v.  Gra-  Waltz  v.  Waltz,  S4  Ind.  403,  40S. 
ham,  91  Ind.  420;  Gerard  v.  Jones,  78  *  May  v.  State  Bank,  9  Ind.  233;  John- 
Ind-37S;  Columbus,  etc.,  Co.  v.  Braden,  son  v.  Breedlove,  72  Ind.  36S;  Friddle 
no  Ind.  558;  Hervey  v.  Parry,  82  Ind.  v.  Crane,  68  Ind.  583;  Old  v.  Mohler, 
283.  122  Ind.  594.     See,  generally,   Mansur 

2  R.  S.  1SS1,  §  658.  v.  Streight,  103  Ind.  35S;    Eberhart  v. 

3  Hedrickfl.  D.  M.  Osborne  &  Co.,  99  Reister,  96  Ind.  478. 

Ind.  143, 14S;   Stockwell  v.  Johnson,  101  5  Citizens'   State  Bank  v.   Adams.  91 

Ind.  1,  17,  and  cases  cited;  Buchanan  v.  Ind.  2S0;   Holliday  v.  Thomas,  90  Ind. 

State,  106  Ind.  251;    Torr  v.  Torr,  20  398;  Cooper  v.  Blood,  2  Wis.  62;   State 

Ind.  11$;    McKinlay  v.  Shank,  24  Ind.  v.  Avery,  17  Wis.  672;   Heath  v.  Keyes, 

258;    Lowry   v.   Dutton,  28    Ind.   473;  35  Wis. 668;  Axte  v.  Chase,  83  Ind.  546; 

Numbers  v.  Bowser,  29  Ind. 491;   Lucas  Davis  v-  Liberty,  etc.,  Co.,  84  Ind.  36; 

v.  Smith, 42  Ind.  103;   Hamilton  v. Win-  McKesson    v.   Sherman.  51    Wis.   303; 

terrowd,  43  Ind.  393;  Krewson  v.  Cloud,  Davis  v.  Town  of  Fulton,  52  Wis.  657; 

[.5  Ind.  275;    Bristol,  etc.,  Co.  v.  Boyer,  West   Coast,  etc.,  Co.  0.   Newkirk,  Ix> 


•OiJS 


ERROR  IN  JUDICIAL  PROCEEDINGS. 


that  is  clearly  immaterial  is,  as  a  general  rule,  harmless  even 
if  erroneous.1  But  this  rule  is  one  to  be  applied  with  some 
care,  since  it  is  not  always  possible  for  the  appellate  tribunal 
to  ascertain  what  effect  apparently  immaterial  evidence  may 
have  had  upon  a  jury.  It  is,  at  all  events,  not  safe  to  apply 
the  rule  strictly  or  too  generally.2  Where  it  aiiirmatively  ap- 
pears or  where  it  may  be  fairly  inferred  that  in  the  particular 
case  the  erroneous  admission  of  the  evidence  could  not  have 
influenced  the  verdict,  the  error  is  always  to  be  regarded  as 
harmless.  As  evidence  seemingly  immaterial  may  sometimes 
arouse  prejudice,  create  undue  passion,  or  carry  the  jury  to 
collateral  issues,  it  must  be  true  that  there  are  cases  forming 
exceptions  to  the  settled  general  rule.3  Where  objection  is 
made,  but  no  evidence  is  introduced,  the  error  in  overruling 
the  objection  is  rendered  harmless  for  the  reason  that  the  rul- 
ing was  uninfluential.4  It  is  held  in  one  of  our  cases  that 
"  Illegal  proof  of  what  need  not  be  proved  at  all  will  not  viti- 
ate a  verdict."5  But  this  doctrine  requires  some  little  qualifica- 
tion, for  it  is  very  clear  that  serious  harm  may  be  done  by  per- 
mitting a  party  to  give  incompetent  evidence,  although  he  may 


Cal.  275,  22  Pac.  Rep.  231 ;  Dickinson  v- 
Coulter,  45  Ind.445;  Indianapolis,  etc., 
Co.  v.  Anthony,  43  Ind.  1S3;  Persons  v. 
McKibben,  5  Ind.  261,  S.  C.61  Am.  Dec. 
85;  In  re  Crawford,  113  N.Y.  500;  City 
of  Kinsley  p.  Morse,  40  Kan.  577,  20  Pac. 
Rep.  217;  Oshkosh,  etc.,  Co.  v.  Ger- 
mania,  etc.,  Co.,  71  Wis.  454,  S.  C.  5 
Am.  St.  Rep.  233. 

1  Latterett  v.  Cook,  1  la.  i,  S.  C.  63 
Am.  Dec.  42S;  Barton  <o.  Kane.  17  Wis. 
3S,  S.  C.  84  Am.  Dee.  728;  Winklev  v. 
Foye,  33  X.  II.  171,  S.  C.  66  Am.  Dec. 
715,  720.  note;  Edgerly  v.  Emerson,  23 
N.  H.  555,  S.C.  55  Am.  Dec.  207;  Shep- 
herd v.  Lanfear,  5  La.  336,  25  Am.  Dec. 
iM  ;  Miles  v.  Stevens.  3  Pa.  St.  21,  S.  C. 
45  Am.  Dee. 621;  Brooks  v.  Dutcher,  22 
N(  b.  '■!  j.  56  V  W.  Rep.  128;  Hanson 
v.  Elton,  38    Minn.  W.  Rep. 

614;  Robinson  v.  Shanks,  118  Ind.  125, 
20N.E.  Rep.  713;  Klein  v.  Hoffheimer, 


132  U.  S.  367;  McDermitt  v.  Hubanks, 
25  Ind.  232;  Wayne  Count}'  Turnpike 
Co.d.  Berrv.  5  Ind.  286;  Nauglec  State. 
101  Ind.  2S4;  Gebhart  v.  Burket,  57  Ind. 
378;  Lovinger  v.  First  National  Bank, 
81  Ind.  354;   Deig  v.  Morhead,  no  Ind. 

45 1- 

2  Graves  v.  Campbell,  74  Texas.  576. 
12  S.  W.  Rep.  23S;  Taylor  ©.Baltimore, 
etc.,  Co.,  33  W.  Va.  39,  10  S.  E.  Rep. 
29;  Bartletl  v.  Beardmore,  74  Wis.  485, 
43  X.  W.  Rep.  (.92;  Fordyce  v.  Mc- 
Cants,  59  Ark.  509,  11  S.  W.  Rep.  694; 
Raker  7  .  Dessauer,  49  Ind.  28. 

3  It"  the  e\  idence  is  in  the  strict  sense 
immaterial,  that  is,  wholly  without  in- 
fluence, the  rule  applies  in  full  vigor. 
Fordyce  v.  McCants,  59  Ark.  509,  n  S. 
W.  Rep.  694. 

4  Findley  v.  State,  5  Blackf.  576. 

5  Beagles  v.  Sefton,  7  Ind.  496.  The 
general    rule  undoubtedly    is    that   per- 


HARMLESS   ERROR. 


569 


not  be  under  any  obligation  to  give  any  evidence  upon  the 
point.  Jurors  having  evidence  laid  before  them  with  the  sanc- 
tion of  the  court  often  deem  it  material  and  yield  to  it  when  to 
yield  is  to  do  wrong.  Where  a  party  himself  proves  a  fact  the 
error  in  permitting  his  adversary  to  give  evidence  upon  the 
same  point  is  uninfluential.1  There  is  no  prejudicial  error 
where  an  objectionable  question  is  asked  but  no  answer  is  given,2 
except  in  cases  where  it  is  fairly  inferable  that  a  persistence  in 
asking  improper  questions  has  probably  influenced  the  jury  to 
believe  that  the  facts  assumed  in  the  questions  are  true.3  The 
cases  to  which  we  have  referred,  and  to  which  a  multitude  more 
may  be  added,  are  all  instances  of  the  application  of  the  wide- 
reaching  general  rule  that  where  a  ruling  either  in  admitting 
or  excluding  evidence  is  not  influential  the  error  will  be  re- 
garded as  harmless.4 

§  642.  Instructions — What  errors  are  in  general   regarded   as 
Uninfluential — Errors  in  instructions  which  the    record   shows 


mitting  a  party  to  give  evidence  upon  a 
point  that  he  is  not  obliged  to  prove  is 
a  harmless  error.  Linard  v.  Crossland, 
10  Texas,  462,  S.  C.  60  Am.  Dec.  213; 
Donley  V.  Camp,  22  Ala.  659,  S.  C.  5S 
Am.  Dec.  274;  Sims  v.  Boynton,  32 
Ala.  353,  S.  C.  70  Am.  Dec.  540. 

1  Knowles  v.  Dow,  22  N.  H.  3S7,  S.  C. 
55  Am.  Dec.  163.  In  such  a  case  as 
that  cited  the  decision  might  well  be 
placed  upon  the  ground  that  the  party 
invited  the  ruling  and  is,  therefore,  pre- 
cluded from  successfully  complaining. 
It  may  happen  in  such  a  case,  as  it  does 
in  many  others,  that  the  ruling  of  the 
trial  court  may  be  upheld  upon  more 
reasons  than  one.  In  matters  of  pro- 
cedure it  is  often  true  that  a  case  may 
be  brought  within  one  rule  with  almost 
as  much  propriety  as  another.  One  who 
sustains  a  ruling  has  very  frequently 
more  than  "one  string  to  his  bow." 

2  Sharon  v.  Sharon,  79  Cal.  633,  22 
Pac.  Rep.  26;  Warson  v.  McElroy,  33 
Mo.  App.  553. 


3  People  v.  Mullings,  S3  Cal.  138,  12 
Crim.  Law  Mag.  436.  It  is  evident  that 
this  rule  ought  to  apply  to  a  persistent 
offer  to  prove  facts  which  it  is  assumed 
a  witness  will  testify  to,  for  such  offers, 
as  every  lawyer  of  experience  knows,  do 
often  wrongfully  and  materially  influ- 
ence jurymen.  A  party  who  persists 
in  a  course  so  manifestly  unfair  and  so 
clearly  disrespectful  to  the  trial  court 
has  no  reason  to  complain  if  it  costs 
him  the  judgment  he  obtains.  The 
doctrine  can  not,  of  course,  apply  where 
the  offers  are  of  essentially  different 
evidence. 

4  The  rule  prevails  where  the  decision 
is  rendered  by  the  trial  court  upon  a 
motion  to  strike  out  or  reject  evidence. 
Wasson  v.  Hodsire,  10S  Ind.  26;  Rotan 
v.  Stoeber,  Si  Ind.  145.  See,  gener- 
ally, Johnson  v.  Gwin,  100  Ind.  466; 
Baker  v.  Carr,  100  Ind.  330;  Henry  o. 
Carson,  96  Ind.  412;  Kimble  v.  Seal, 92 
Ind.  276;  Newcomer  v.  Hutchings,  96 
Ind.  119. 


570 


ERROR  IN  JUDICIAL  PROCEEDINGS. 


were  not  likely  to  mislead  the  jury  are  regarded  as  harmless.1 
The  oreneral  rule  is  well  settled,  and  the  only  difficulty  in  its 
practical  enforcement  is  in  determining  what  errors  were  or 
were  not  influential.  Irrelevant  instructions  are  as  a  general 
rule,  but  not  always,  regarded  as  harmless,  although  they  may 
be  erroneous.2  Where  instructions  are  given  by  the  court  sub- 
stantially the  same  as  those  requested  by  the  party  who  com- 
plains there  is  no  error  in  refusing  to  give  the  instructions 
asked.3  Although  instructions  should  properly  direct  the  jury 
upon  the  measure  of  damages,  nevertheless,  if  the  court  gives 
an  erroneous  instruction  it  will  be  regarded  as  harmless  if  it 
affirmatively  appears  from  the  record  that  the  amount  of  dam- 
ages assessed  is  correct.4     If  it  affirmatively  appears  from  the 


1  The  rule  stated  in  the  text  is  so  well 
settled  and  so  familiar  that  it  is  unnec- 
rv  to  cite  cases  for  the  simple  pur- 
pose of  supporting  it,  and  we  have 
therefore  cited  cases  only  for  the  pur- 
pose of  illustrating  its  application  in 
particular  instances:  Armstrong  v. 
Tail,  S  Ala.  f>35.  S.  C.  42  Am.  Dec. 656; 
Klimple  v.  Boelter,  44  Minn.  172,  40  N. 
\V.  Rep. 306;  Hogshead  v.  State,  120  Ind. 
327,  22  X.  E.  Rep.  330:  Whidden  v. 
Seelye,  40  Me.  247,  S.  C.  63  Am.  Dec. 
661;  Walters  v.  Jordan,  13  Ired.  Law, 
361,  57  Am.  Dec.  558;  Bos"ley  v.  Chesa- 
peake, etc.,  Co.,  3  Gill  &  J.  450,  S.  C.  22 
Am.  Dec.  337;  Johnson  v.  Evans,  8 
Gill,  155,  S.  C.  50  Am.  Dec.  669;  Saw- 
yer v.  Chicago, etc.,  Co.,  22  Wis.  402, 
S.  C.  99  Am.  Dec.  49;  Zacharv  v.  Race, 
9  Ark.  212.  S.  C.  47  Am.  Dec.  744; 
Hovey  v.  Chase,  52  Me.  304,  S.  C.  S3 
Am.  Dee.  514,  Lackawanna,  etc..  Co.  v- 
Doak,  52  Pa.  St.  579,  S.  C.  91  Am.  Dec. 
166;  W'orlev  v.  Moore,  97  Ind.  15; 
Ricketts?;.  Harvey,  106  Ind.  564;  Andis 
v.  Personett,  10S  Ind.  202;  Jones  v. 
A.ngell,  95  Ind.  370;  Atkinson  v.  Dai- 
ley,  107  Ind.  117:  Copeland  v.  Koontz, 
I.-  Ind.  126;  Staser  v.  Hogan,  120  Ind. 
217;  Cooper  v.  State  120  Ind.  377; 
I  v.  Camden,  135  I'.  S.507;  O'Cal- 


laghan    v.  Bode,  84   Cal.  489,  24  Pac. 
Rep.  209. 

*  Hummel  r.  Tyner,  70  Ind.S4;  At- 
kinson v-  Gwin,  S  Ind.  376;  Parmlee  v. 
Sloan,  37  Ind.  469;  Felkner  v.  Scarlet, 
29  Ind.  154;  Wallace  v.  Cravens.  34 
Ind.  534;  Rollins  v.  State,  62  Ind.  46; 
Cassel  v.  Cooke,  S  Serg.  &  R.  26S.  S.  C. 
n  Am.  Dec.  610;  Stockton  v.  Stock- 
ton, 73  Ind.  510;  Mooney  r.  Kinsey.  90 
Ind.  33;  Ryman  ?.  Crawford,  S6  Ind. 
262. 

3  Patrick  v.  Graham,  132  U.  S.  027; 
Hudson  v.  Ilouser,  123  Ind.  309;  Con- 
radt  v.  Clauve,  93  Ind.  476;  Williamson 
v.  Gingling,  93  Ind.  42;  Logan  -•.  Logan, 
77  Ind.  558;  Union  Mutual,  etc..  C 
Buchanan,  100  Ind.  63, and  cases  cited; 
Chicago,  etc..  Co.  v.  Boggs,  101  Ind. 
c;22;  Louisville,  etc.,  Co.  v.  Jones,  10S 
Ind.  551:  Town  of  Martinsville  :•. 
Shirley.  S4  Ind.  546;  Daegling  v.  Illi- 
nois, etc.,  Co..  33  111.  App.  341;  Mc- 
Mahon  ?\  Sankey,  35  111.  App.  341,  S. 
C.  24  X.  E.  Rep.  1027. 

4  Poland  v.  Miller,  95  Ind.  3S7;  State 
v.  Parish. 83  Ind.  223;  Chicago, etc., Co. 
V.  Hunter.  [28  Ind.  213.  27  X.  E.  Rep. 
477;  Copeland  V.  Koontz.  125  Ind.  126, 
2\  X.  E.  Rep.  17  |;  Anderson  v.  Don- 
aldson, 32   111.  404;    Linck    v.    Scheffel, 


HARMLESS  ERROR.. 


571 


record  that  in  no  event  can  the  complaining  party  recover  upon 
the  facts,  errors  in  the  instructions,  however  flagrant,  may  be 
regarded  as  harmless.1  If  the  answers  of  the  jury  to  special  in- 
terrogatories clearly  show  that  the  party  suffered  no  substantial 
injury  from  a  wrong  instruction,  there  is  no  available  error.2 
An  erroneous  instruction  relating  to  a  point  upon  which  there  is 
no  dispute,  and  having  no  bearing  upon  any  other,  is  without 
prejudicial  influence.3  There  is  no  prejudicial  error  in  refusing 
an  instruction  asked  by  a  party  upon  an  issue  fully  decided  in 
his  favor.4  It  is  entirely  proper  to  refuse  instructions  that  have 
no  application  to  the  evidence. 


32  111.  App.  17;  Werner  v.  O'Brien,  40 
Mo.  App.  483;  Sanders  v.  Reister,  1 
Dak.  151,  46  N.  W.  Rep.  6S0;  Stephens 
v.  Regenstein,  89  Ala.  561,8  So.  Rep. 
6S;  Ohio,  etc.,  Co.  v.  Dooley,  32  111. 
App.  228;  Wilson  v.  Everett,  139  W. 
S.  616;  Town  of  Lake  v.  Bok,  33  111. 
App.  45. 

1  Walbrun  v.  Babbitt,  16  Wall.  577; 
Barth  v.  Clise, -12  Wall.  400;  Evans  v. 
Pike,  11S  U.  S.  241;  Deery  v.  Cray,  10 
Wall.  263;  Brobst   v.  Brock,  10  Wall. 

5J9- 

2  Louisville,  etc.,  Co.  v.  Orr,  84  Ind. 
50;  Worley  v.  Moore.  97  Ind.  15; 
Whitewater  R.  R.  Co.  v.  Budgett,  94 
Ind.  216;  Cline  v.  Lindsey,  no  Ind. 
337,  n  N.  E.  Rep.  441;  Woolery  v. 
Louisville,  etc.,  Co.,  107  Ind.  3S1; 
Cleveland,  etc.,  Cc.  v.  Newell,  104  Ind. 
264;  Ronan  v.  Meyer,  84  Ind.  390; 
Moore  v.  Lynn,  79  Ind.  299:  Louis- 
ville, etc.,  Co.  -•.  Krinning,  S7  Ind.  351; 
Barnett  v.  Feary,  101  Ind.  95;  Kuhns 
v.  Gates,  92  Ind.  66;  Bedford,  etc.,  Co. 
v.  Rainbolt,  99  Ind.  551;  Hayden  v. 
Souger,  56  Ind.  42,  S.  C.  26  Am.  Rep. 
1;  Ohio,  etc.,  Co.  v.  Dooley,  32  111. 
App.  228.  Where  a  case  is  submitted 
on  an  agreed  statement  of  facts,  it  has 
been  held  that  instructions  need  not  be 
noticed.  Payne  v.  First  National  Bank, 
43  Mo.  App.  377.  But  we  suppose  that 
this  can  hardly  be  correct  as  a  general 


rule,  although  it  may  be  correct  in  some 
cases,  for  where  parties  simply  agree  as 
to  what  facts  the  evidence  will  prove 
there  majr  be  material  error  in  direct- 
ing the  jury  as  to  the  law. 

3  Tomlinson  v.  Briles,  101  Ind.  538. 

4  Woodward  v.  Beegue,  53  Ind.  176. 
It  is  not  prejudicial  error  for  the  court 
to  refuse  to  instruct  the  jury  upon  mat- 
ters of  known  duty,  as,  for  instance, 
that  they  should  decide  the  case  before 
them  without  preiudice,  partialitv  or 
favor.  A  party  can  not  complain  of 
the  refusal  to  give  instructions  asked  by 
his  adversary.  Chicago,  etc.,  Co.  v. 
Powell,  40  Ind.  37.  We  think,  how- 
ever, that  there  may  be  cases  where  a 
party  could  justly  complain,  as,  for  in- 
stance, if  the  court  had  misled  him  bv 
signifying  a  purpose  to  give  the  instruc- 
tions asked  and  then  failing  to  do  so. 
But  such  a  case  forms  a  marked  excep- 
tion to  the  general  rule.  Where  it  af- 
firmatively appears  that  an  instruction 
is  not  applicable  to  the  facts,  there  is 
no  error  in  refusing  it.  Beard  v.  Sloan, 
3S  Ind.  12S;  Sering  v.  Doan,  23  Ind. 
455.  See,  generally,  Huntington  v. 
Colman,  1  Blackf.  34S;  Fitzgerald  v. 
Jerolaman,  10  Ind.  33S;  Musselman  v. 
Pratt.  44  Ind.  126;  Hays  v.  Hynds,  2S 
Ind.  531;  Carter  v.  Pomerov.  30  Ind. 
43S;  Miles  v.  Douglass,  34  Conn.  393; 
People   v.  Muller,  96   N.  Y.  40S.  413; 


572  ERROR   IN  JUDICIAL  PROCEEDINGS. 

§  643.  Verdict  clearly  Ri^ht  on  the  Evidence,  Erroneous  Instruc- 
tions Harmless — It  is  held  in  many  cases  that  when  the  verdict 
is  clearly  right  on  the  evidence  errors  in  instructions  may  be 
treated  as  harmless.1  The  general  rule  is  firmly  settled,  but 
there  is  difficulty  in  giving  it  just  application  to  particular  in- 
stances. Where  the  evidence  is  uncontradicted,  or  where  the 
complaining  party  could  not  have  prevailed,  no  matter  what 
instructions  were  given,2  the  rule  may  be  readily  and  easily 
applied,  but  where  there  is  some,  although  apparently  no  very 
material  conflict  in  the.  evidence,  there  is  much  difficulty  in 
practically  applying  the  general  rule,  inasmuch  as  in  such  cases 
there  is  danger  of  invading  the  province  of  the  jury  and  usurp- 
ing functions  that  do  not  belong  to  the  court.  In  truth,  the  ap- 
plication of  the  rule  is  in  a  great  measure  arbitrary  and  rests 
chiefly  in  the  discretion  of  the  court.  It  is  very  difficult  to  recon- 
cile the  broad  doctrine  of  some  of  the  cases,  which  assert  that 
where  the  verdict  is  right  on  the  evidence,  erroneous  instructions 
may  be  regarded  as  harmless,  with  the  long  settled  and  familiar 
doctrine  that  the  court  can  not  charge  upon  the  wreight  of  evi- 
dence or  instruct  as  to  the  credibility  of  witnesses.3     It  is  like- 

Jellison  v.  Goodwin,   43  Me.  2S7,  S.  C.  2  Donley  v.  Camp.  22  Ala.  659,  S.  C. 

69   Am.  Dec.  62;  Thorwegan  v.  King,  58  Am,  Dec.  274. 

in  U.  S.  549.  3  Kul  wider  v.  [ngels,  87  Ind.  414;  State 
1  Standard  Oil  Co.  v.  Bretz,  9S  Ind.  v.  Huffman,  16  Ore.  1^,  16  Pac.  Rep. 
231;  Ashley  v.  Foreman,  S5  Ind.  55;  640;  Frame  v.  Badger,  79  111.  441 ;  Jen- 
Cheek  v.  City  of  Aurora,  92  Ind.  107;  kins  v.  Tobin,  31  Ark.  306;  Wannack 
Mand  v.  Trail, 92  Ind.  521;  Musselman  v.  Mayor,  etc.,  $3  Ga.  162;  Clapp  v. 
v.  Wise,  84  Ind.  24S;  Morris  v.  State,  Bromaghan,  9  Cow.  530;  Morris  v. 
94  1  nd.  565;  Wolfe  v.  Pugh,  101  Ind.  Lachman,  6S  Cal.  109,  113;  Cutchfield 
293;  Perry  v.  Makemson,  103  Ind.  300;  v.  Richmond,  etc.,  Co.,  76  N.  C.  320; 
ady  v.  Magher,  S5  Ind.  22S;  Sim-  McMinn  v.  Whelan,  27  Cal.  300;  Rice 
mon  v.  Larkin,  82  Ind.  385;  Louisville,  v.  State,  3  Tex.  App.  451;  Common- 
etc.,  Co.  v.  Grubb,  88  Ind.  85;  Payne  v.  wealth  v.  Barry,  9  Allen,  276;  Gillian 
June.  92  Ind.  252;  Daniels  v.  McGin-  V.  Ball,  49  Mo.  249;  State  v.  Smith,  49 
nis,  97  Ind.  549;  Wood  v.  Ostram,  29  Conn.  376,  3S7;  People  v.  Kelly,  35 
Ind.  177;  Roberts  v.  Nodwift,  8  Ind.  Hun.  (N.Y.)  295;  Andrews  v.  Runyon, 
I'.rooster  v.  State,  15  Ind.  190;  65  Cal.  629;  Cuningham  v.  State,  65 
Lafayette,  etc.,  Co.  v.  Adams,  26  Ind.  Ind.  377;  Matthews  v.  Story,  54  Ind. 
76;  Blake  t\  Hedges,  14  Ind.  506;  417;  Broker  v.  Scobej',  56  Ind.  588; 
Thompson  v.  Thompson,  9  Ind.  323,  S.  Carter  -\  Pomeroy,  30  Ind.  43S.     See 

C.  68  Am.  Dec.  638;    Davis  v.  Liberty,    post,  § . 

etc.,  Co.,  84  Ind.  36;    Ledford   v~.  Led- 
ford,  95  Ind.  2S3. 


HARMLESS   ERROR. 


573 


wise  quite  difficult  to  harmonize  the  doctrine  with  the  settled 
rule  that  where  there  is  any  material  evidence  fairly  entitled  to 
consideration  a  party  has  a  right  to  have  the  law  applicable  to 
that  evidence  declared  to  the  jury  by  the  court.1  The  doctrine 
is  one,  it  is  quite  safe  to  say,  that  is  to  be  cautiously  and  sparingly 
applied,  for  the  reason  that  without  the  witnesses  before  the 
court,  it  is  difficult  for  the  court  to  correctly  weigh  the  evidence,2 
and  for  the  further  reason  that  it  is  almost  impossible  to  under- 
take that  work  without  invading  the  province  of  the  jury.  The 
general  rule,  as  declared  by  high  authority  is,  that  where  there 
is  a  radically  erroneous  instruction  it  must  appear  from  the 
record  "  beyond  doubt, "  that  it  did  not  prejudice  the  complain- 
ing party,  or  the  judgment  will  be  reversed.3     It  is  probably 

1  Chamberlin  v.  Chamberlin,  116  111.  of  Mobile,  etc.,  Co.  v.  Jurey,  in  U.  S. 
4S0,  6  N.  E.  Rep.  444;  State  v.  Dunlop,  584.  While  the  Supreme  Court  of  the 
65  N.  C.  28S;  Carpenter  v.  State.  43  United  States  asserts,  as  the  extracts 
Ind.  371;  People  v.  Taylor,  36  Cal.  255.  made   from   its   opinions   show,  a  very 

2  In  cases  far  too  numerous  for  cita-  strong    doctrine,    still    it    nevertheless 


tion  the  courts  have  declared  that  they 
will  not  weigh  the  evidence.  The  sound  - 
ness  of  the  rule  that  the  courts  will  not 
weigh  the  evidence  where  all  they  know 


fully  recognizes  the  doctrine  that  error 
must  be  prejudicial  or  there  will  be  no 
reversal.  Lancaster  v.  Collins,  115  U. 
S.  222;  Smiths  v.  Shoemaker,  17  Wall. 


of  it  is  what  appears  in   the  record,  is     630;  Decatur  Bank  r.  St.  Louis  Bank, 


vindicated  in  an  article  in  the  Wash- 
ington Law  Rep.  See  33  Central  Law 
Jour.  293. 

8  In  the  case  of  Gilmer  v.  Higlev,  no 
U.  S.  47,  50,  the  Supreme  Court  of  the 
United  States,  in  speaking  of  the  con- 
tention that  the  record  did  not  affirma- 
tively show  that  the  complaining  party 
was  prejudiced,  said:  "  We  have  not 
heard  of  such  a  rule  in  a  revisory  court. 
The  furthest  that  any  court  has  gone 
has  been  to  hold  that  when  such  court 
can  see  affirmatively  that  the  error 
worked  no  injury  to  the  party  appeal- 
ing, it  will  be  disregarded.  This  court 
in  Deery  v.  Cray,  5  Wall.  795,  S07,  used 
this  language:  '  Whenever  the  applica- 
tion of  this  rule  is  sought,  it  must  appear 
*o  clear  as  to  be  beyond  doubt  that  the 
error  did  not  and  could  not  have  preju- 
diced the  party's  rights.'  "  To  much  the 
same  effect  is  the  decision  in  the  case 


21  Wall.  294;  Allis  v.  Ins.  Co.,  97  U.  S. 
144;  Northern  R.  R.  Co.  v.  Herbert, 
116  U.  S.  642;  Grand  Chute  Co.  v. 
Winegar,  15  Wall.  355;  Hornbuckle  v. 
Stafford,  in  U.  S.  3S9;  Mining  Co.  v. 
Taylor,  100U.S.37;  Cooper  v.  Coates, 
21  Wall.  105.  A  very  strong  illustration 
of  the  rule  that  errors  which  do  not  pre]  - 
udice  the  party  complaining  are  harm- 
less is  supplied  by  the  case  of  Pence  v. 
Langdon,  99  U.  S.  57S.  In  that  case  the 
trial  court  submitted  written  instru- 
ments to  the  jury  for  construction,  and 
it  was  held  that  even  if  this  was  error  it 
was  nothing  more  than  harmless  error, 
for  the  reason  that  the  jury  placed  the 
correct  construction  upon  the  instru- 
ments. See.  also.  Walden  v.  Bodley.  14 
Pet.  156;  Railroad  Co.  v.  Pratt.  22 
Wall.  123;  Douglass  v.  McAllister,  3 
Cranch.  298;  Brobst  v.  Brock,  10  Wall. 
519;  Tweed's  Case,  16  Wall.  504;  Walk- 


574  ERROR    IN  Jl    DICIAL  PROCEEDINGS. 

true  that  the  language  employed  in  the  case  just  referred  to  is 
somewhat  stronger  than  the  decisions  of  the  majority  of  the 
courts  sustained,  but  the  principle  asserted  is  that  which  gen- 
erally prevails,  and  the  difference  is  rather  in  the  method  of 
expressing  the  rule  than  as  to  the  rule  itself. 

§  644.  Instructions — Verbal  Inaccuracies — The  rule  is,  that  an 
error  in  framing  an  instruction  is  harmless  if  it  was  such  as 
could  not  have  misled  the  jury.  Where  the  context  shows  the 
meaning  of  a  term  employed  in  an  instruction  and  the  meaning 
is  so  controlled  as  to  prevent  the  jury  from  being  misled  as  to 
the  law,  the  error  may  well  be  regarded  as  uninfluential,1  but 
where  the  term  itself  conveys  an  erroneous  meaning,  and  it  is 
not  controlled  or  explained  by  the  words  with  which  it  is  asso- 
ciated, the  error  must  be  regarded  as  prejudicial.  This  rule 
simply  means  that  if  the  language  employed  is  such  as  to  cre- 
ate an  erroneous  impression  upon  the  minds  of  the  jury,  and 
the  impression  so  created  substantially  affects  a  material  point 
in  the  case,  the  error  is  influential  against  the  party  to  whose 
interests  it  is  adverse,2  otherwise  it  is  not.3 


er  v.  Johnson,  96  U.  S.  424;  Evans  v.  tain  a  demurrer  to  theevidence  or  direct 

Pike,  11S   U.   S.  241.     It  seems  to  us  a  verdict.     But  our  cases,  although  in 

that  the  question  is  one  dependent  in  confusion,  seem   to  indicate  a  rule  less 

most  cases    upon  the  character  of  the  strict  than  that  suggested. 

error  itself,  as  exhibited  by  the  record  1  Pittsburgh,  etc.,  Co.  v.  Sponier,  S5 

in  the  particular  instance.     If  that  error  Ind.  165:  Chambers  v.  Kyle,  87  Ind.  S3; 

is  in  itself  radical  and  affects  substantial  Wilson  t>.  Trafalgar,  etc.,  Co.,  93  Ind. 

rights  in  a  material  degree,  or  may  prob-  2S7;  Vanvalkenberg  v.  Vanvalkenberg, 

ably  so  affect  such  rights,  then  the  error  90  Ind.  433,     Hogshead   v.  State,   120 

can  not  be  regarded  as  uninfluential  un-  Ind.  327,  22  N.  E.  Rep.  330;    O'Calla- 

less  the  record,  with  decisive  clearness  ghan  v.  Bode,  S4  Cal.489,  24  Pac.  Rep. 

and   strength,  affirmatively  shows  that  269;    Clem   v.  Clem   (Ky.),   13   S.  W. 

it  did  not  influence  the  final  decision  in  Rep.  102;  Chambers  v.  Meaut,  66  Miss, 

the  case  to  the  prejudice  of  the  party  625,  6   So.   Rep.  465;    Steinkamper  v. 

who   complains.     See    <nit,\  §  635,  and  McManus,  26  Mo.  App.  51. 

authorities    cited.     It'   this    is  the   true  2  Abbott  v.  Dvvinnell,  74  Wis.  514,  43 

rule   then   it  must   follow  that  the  evi-  N.  W.  Rep.  496. 

dence  can  not  decisively  show  a  radical  3  Walburn  v.  Babbitt,  16  Wall.  577; 

error  to  be  harmless  unless  it  so  clearly,  Chicago,  etc.,  Co.  v.  Whitton,  13  Wall, 

strongly  and  fully  sustains  the  judgment  270;   Kimble  v.  Seal,  92  Ind.  276. 
below  that  it  would  not  be  error  to  sus- 


HARMLESS   ERROR. 


575 


§  645.  Erroneous  Instructions  generally  harmless  where  there  is 
a  Special  Verdict — Where  there  is  a  special  verdict  it  is  unnec- 
essary and,  indeed,  improper,  to  instruct  the  jury  upon  the 
general  principles  of  law  applicable  to  the  case.  As  there  is 
no  propriety  in  giving  general  instructions,  and  as  the  law  of 
the  case  must  be  pronounced  upon  the  facts  contained  in  the 
special  verdict,  general  instructions  can  not,  as  a  rule,  be  in- 
fluential.1 It  is  proper  to  instruct  as  to  the  form  of  the  verdict 
and  like  matters,  and  it  is  possible  to  conceive  that  prejudicial 
error  may  be  committed  in  giving  such  instructions.  So,  if 
the  court  should  undertake,  as  it  might  with  propriety  do,  to 
instruct  the  jury  concerning  the  rules  of  evidence,  errors  in 
that  class  of  instructions  might  be  so  influential  and  material 
as  to  constitute  available  error.  So,  again,  if  the  court  should 
invade  the  province  of  the  jury  in  such  instructions  the  error 
might  be  of  such  a  character  as  to  be  deemed  prejudicial. 

§  646.  Equity  Cases — General  Instructions  Unnecessary — As  suits 
in  equity  are  to  be  ultimately  determined  by  the  court  and  not 
by  the  jury  general  instructions  are  not  required.2     As  general 


1  Louisville,  etc.,  Co.  v.  Frawley,  no 
Ind.  iS;  Johnson  v.  Culver,  n6  Ind. 
27S,  294;  Lake  Shore, etc.,  Co.  v.  Stupak, 
123  Ind.  210,  225;  Stayner  v.  Joyce,  120 
Ind.  99;  Woollen  v.  Wire,  no  Ind.  251; 
Indianapolis,  etc.,  Co.  v.  Bush,  101  Ind. 
582;  Louisville,  etc.,  Co.  v.  Hart,  119 
Ind.  273;  Toler  v.  Keiher,  81  Ind.  383. 
The  general  doctrine  was  thus  stated 
in  Louisville,  etc.,  Co.  v.  Frawley, 
supra:  "There  is,  therefore,  neither 
propriety  nor  fitness,  that  the  court 
should,  either  upon  its  own  motion  or 
at  the  request  of  counsel,  give  any  gen- 
eral instructions  as  to  the  law  of  the 
case.  The  jury  should  be  left  entirely 
free  to  find  the  facts  material  to  the 
several  issues,  without  instruction  as  to 


with  whatever  else  may  be  necessary 
to  enable  the  jury  clearly  to  compre- 
hend the  subjects  which  are  to  be  cov- 
ered by  their  special  verdict,  is  all  that 
is  proper  when  a  special  verdict  is  to  be 
returned."  Cole  v.  Crawford,  69  Texas, 
124,  5  S.  W.  Rep.  646. 

2  Swales  v.  Grubbs,  126  Ind.  106,  no. 
In  the  case  cited  the  court  used  this 
language:  "In  chancery  cases  the 
province  of  the  jury  is  to  find  facts,  and 
not  to  administer  equities  in  the  light 
of  legal  rules.  This  is  for  the  court 
when  the  facts  are  ascertained.  It  is 
enough,  therefore,  to  say  that  in  a  case 
like  the  present,  general  instructions  as 
to  the  law  applicable  to  the  facts  are 
not  proper,  and  available  error  can  not 


whether  the  law  will  declare  one  way  or  be  predicated  upon  the  giving  or  the 

the  other,  upon  the  facts  or  state  of  facts,  refusal  to  give  instructions  of  a  general 

which  may  be  found.     A  statement  by  nature.    In  that  respect  the  rules  which 

the  court  of  matters  put  in  issue  by  the  govern  where  the  jury  are  required  to 

pleadings  and  of  the  rules  for  weighing  find  a  special  verdict  are  controlling." 
or    reconciling    conflicting    testimony. 


ERROR   IN*  JUDICIAL  PROCEEDINGS. 

instructions  are  not  required,  it  must  be  true,  as  a  general  rule, 
that  errors  in  giving  or  in  refusing  instructions  in  such  cases 
are  uninfluential.  This  conclusion  follows  from  the  settled 
general  principle  that  where  the  ultimate  conclusion  is  right 
intermediate  errors  are  harmless,1  and  in  the  class  of  cases  we 
are  here  considering  the  ultimate  decision  must  be  made  by 
the  court.  If  that  decision  is  right  the  appeal  must  fail,  no 
matter  how  erroneous  the  general  instructions  may  have  been, 
but  if  wrong,  a  well  taken  and  properly  presented  appeal  must 
be  sustained  no  matter  how  correct  the  instructions  may  have 
been. 

£647.  Incomplete  Instructions  —  The  general  rule,  declared 
and  enforced  in  many  cases,  is  that,  if  an  instruction  is  good  as 
far  as  it  goes,  there  is  no  prejudicial  error,  although  it  may  not 
go  as  far  as  the  party  would  have  been  entitled  to  have  it  go  if 
he  had  appropriately  and  seasonably  made  the  proper  request. 
To  make  available  an  error  in  giving  an  instruction  that  does 
not  fully  state  the  law,  the  party  must  properly  request  a  full 
instruction  upon  the  point.2  The  general  rule  is  not  without 
exceptions,  for  there  may  be  cases  where  the  instructions  are 
so  incomplete  as  to  convey  a  radically  erroneous  view  of  the 
law,  and  where  this  is  so,  the  error,  if  proper  exceptions  are 
taken  and  saved,  may  be  available  for  a  reversal  of  the  judg- 
ment. But  to  constitute  an  exception  to  the  general  rule  the 
case  must  be  one  with  strongly  marked  and  very  unusual  char- 
acteristics. The  general  rule  can  not,  of  course,  apply  where 
it  clearly  appears  that  the  instruction  assumes  to  state  all  that 
is  essential  and  states  only  a  part,  leaving  out  important  and  in- 
fluential elements.3 

i  648.  Instructions — Construction  of  on  Appeal — Instructions 
are  to  be  fairly  and  reasonably  construed,  and  if,  when  so  con- 

'  Ante,  §  590.     "The  ultimate  ruling  4  Utah,  462,  11  Pac.  Rep.  009;   Vann  V. 

is  decisive."  State,  83  Ga.  44,  9  S.  E.  Rep.  945;  Mil- 

2  Post,  §736.     "Requests  where  in-  burn  Wagon  Co. v. Kennedy, 75  Texas, 

st ructions  are  correct  as  far  as  thev  go."  212,  13  S.  W.  Rep.  2S. 

ilso,  Moore  V.  Brown.  81  Ga.  10,  6         3  State  V.  Bird,  107  Ind.  154;    Harvey 

S.  E.  Rep. 833;   State  v.  Rook,  42  Kan.  v.  Cook,  24  III.  App.  134. 
419,  22  Pac.  Rep.  626;  Griffiths  v.  Clift, 


HARMLESS  ERROR.  577 

strued,  there  appears  no  reason  to  believe  that  the  jury  were 
misled  to  the  injury  of  the  complaining  party,  errors  and  in- 
accuracies contained  in  them  may  be  treated  as  entirely  unin- 
fluential.  The  crucial  test  maybe  said  to  be  this:  Did  the 
instructions,  regarded  as  a  whole,  present  the  law  of  the  par- 
ticular case  to  the  jury  with  reasonable  clearness  and  accuracy? 
If  the  instructions  taken  as  a  whole  did  so  present  the  law,  the 
jury  were  not  misled,  and  if  they  were  not  misled  there  is,  as 
appears  from  the  authorities  heretofore  cited,  no  available  er- 
ror. The  rule  that  the  instructions  are  to  be  considered  as  a 
whole  and  not  in  detached  fragments  has  long  prevailed,  and 
is  asserted  in  verv  many  cases.1  It  is  presumed  that  the  jury 
acted  upon  the  instructions  as  a  whole,  and  that  their  verdict 
was  not  controlled  by  fragmentary  or  isolated  parts  of  a  series 
of  instructions.2  If  the  language  employed  by  the  trial  court  in 
its  instructions  is  not  accurate  there  is  nothing  more  than  harm- 
less error  at  most,  unless  the  inaccuracy  was  so  great  as  to 
have  misled  "  a  jury  of  reasonable  intelligence."3  The  court  is 
presumed  to  have  framed  the  instructions  to  fit  the  particular 
case,  and  the  instructions  are  to  be  considered  with  reference 
to  the  evidence.4     If  the  instructions  considered  with  reference 

1  Nave  v.  Flack,  90  Ind.  205,  211,  and  an,  100  Ind.  63,  74.     In  the  case  cited 

cases  cited;  Good-win  v.  State,  96  Ind.  the  court  quoted  from  Judge  Thomp- 

550;   Union,  etc.,  Co.  v.  Buchanan,  100  son's  work  on  charging  the  jury,  this 

Ind.  63,  74,  and  authorities  cited;  Young  language:     "In  every  case,  then,  where 

7'.  McFadden,  125  Ind.  254,  257;  Coble  error  is  assigned  on  instructions  given 

v.    Eltzroth,   125  Ind.    429;     Clanin    v.  or  refused,  the  initial  point  of  inquiry - 

Fagan,   124  Ind.  304;  Conway  v.  Viz-  is,  were  the  jury  misled?"     The  court 

zard,  122  Ind.  266;   Atkinson  v.  Dailey,  also    quoted   from  the  same  work  the 

107  Ind.  117;   Brown  v.   State,   105  Ind.  following:     "The  jury  are  presumed  to 

385;  Hodges    v.    Bales,   102    Ind.    494;  have  understood  the  charge  according 

Blanchard   v.  Jones,  101   Ind.  542;   Eg-  to  the  fair  import  of  its   terms    when 

gleston  v.  Castle,  42  Ind.  531;   United  taken  together."   Thompson  on  Charg- 

States  v.  Tenney  (Ariz.),  S  Crim.  Law.  ing  the  Jury,  §  131. 

Mag.   4S6;    Lewis   v.    State,   18   Texas  3  City  of   Indianapolis    v.   Scott,   72 

App.    401;  Carrington   v.  Pacific,  etc.,  Ind.   196,    203;  McDonel    v.  State,    90 

Co.,  1   Cal.  475;    Clark  v.  McElvy,  11  Ind.    320,   327;   Louisville,  etc.,  Co.   v. 

Cal.    154;    People  v.  Turcott,  65    Cal.  Falvey,  104  Ind.  409.  435. 

126;    Edwards    v.   Cary,   60    Mo.   572;  *  Price  v.  JohnsonCounty,  15  Mo.  433; 

Bartling  v.  Behrends,  20  Neb.  211;  29  Smith  v.  Carr,  16  Conn.  450;   Hooksett 

N.  W.  Rep.  472.  v.  Amoskeag,  etc.,  Co.,  44  N.  H.   105; 

J  Union  Mutual,  etc.,  Co.  v.  Buchan-  Lyman  v.  Redman,  23  Me.  2S9;  Caosc 

37 


578 


ERROR   IN    JUDICIAL  PROCEEDINGS. 


to  the  evidence  in  the  particular  case  could  not  have  misled  the 
jury,  an  error  in  stating-  a  legal  proposition  will  not,  as  a  general 
rule,  constitute  available  error.1 

§  649.  Erroneous  rulings  in  selecting  and  Impaneling  the  Jury 
often  Harmless — There  may  be  a  departure  from  the  directions 
of  the  statute  and  a  disobedience  of  the  rules  of  law  concerning 
the  selection  and  impaneling  of  jurors  and  yet  no  available 
error.2  The  decided  weight  of  authority  is  that  where  a  chal- 
lenge for  cause  is  overruled,  but  the  party  without  being  re- 
quired to  exhaust  all  of  his  peremptory  challenges  secures  the 
rejection  of  the  juror  by  a  peremptory  challenge,  there  is  no 
available  error,3  but  our  decisions  declare  a  different  doctrine.4 
It  is,  however,  held  by  our  court  that  unless  the  party  is  com- 
pelled by  the  ruling  of  the  court  to  exercise  the  right  of  per- 
emptorily challenging  at  least  one  juror,  no  available  error  is 
shown.5  We  are  unable  to  avoid  the  conclusion  that  the  de- 
cision in  the  case  in  our  own  reports  referred  to0  is  wrong 
for  the  reason  that  it  violates  the   rule  that  where  it  does  not 


Bank  v.  Keene,  53  Me.  103;  Sword  v. 
Keith,  31  Mich.  247;  McBride  v. 
Thompson,  S  Ala.  650;  Jeffersonville, 
etc.,  Co.  v.  Lyon,  55  Ind.  477. 

1  Morford  v.  Woodworth,  7  Ind.  S3; 
Rollins  v.  State,  62  Ind.  46;  Stipp  v.. 
Spring  Mill,  etc.,  Co.  54  Ind.  16;  Fitz- 
gerald  v.  Jcrolaman,  10  Ind.  338;  Hunt- 
ington -'.  Colman,  1  Blackf.  348;  Swank 
v.  Nichols,  24  Ind.  199. 

*  Sage  v.  State,  127  Ind.  15;  Hardin 
v.  State,  22  Ind.  347;  Cooper  v.  State, 
120  Ind.  377;  State  v .  Mellor,  13  R.  I. 
666;  Commonwealth  v.  Brown,  147 
Mass.  585;  State  v.  Merriman  (So. 
Car.),  12  S.  E.  Rep.  619;  People  v. 
O'Brirn,  SS  Cal.  4S3,  26  Pac.  Rep.  362; 
Londoner  v.  People,  15  Col.  557,  26 
Pac.  Rep.  135;  Williams  v.  State,  28 
Tex.  App.  301,  14  S.W.  Rep.3SS;  State 
v.  Rockwell  (Iowa),  4S  N.W.  Rep.  721; 
Smith  v.  Smith,  52  N.  J.  L.  207,  19  Atl. 
Rep.  255;  People  v.  ColTman,  59  Mich. 
i,  26  N,  W.  Rep,  207;  Babcock  v.  Peo- 


ple, 13  Col.  515,  22  Pac.  Rep.  817; 
Green  v.  State,  88  Tenn.  614. 

3  Blackwell  v.  State  (Texas),  15  S. 
W.  Rep.  597;  People  v.  Alpin,  86  Mich. 
393,  49N.W.  Rep.  14S;  State  v.  Jackson, 
42  La.  Ann.  1170,  8  So.  Rep.  297;  State 
v.  Aarons  (La.),  9  So.  Rep.  114;  State 
v.  Green,  42  La.  644,  9  So.  Rep.  42; 
Drake  v.  State  (N.  J.),  20  Atl.  Rep. 
747;  State  v.  Brady,  107  N.  C.  S22,  12 
S.  E.  Rep.  325;  Schoeffler  v.  State,  3 
Wis.  823;  Burt  v.  Panjaud,  99  U.  S. 
1S0;  Freeman  v.  People,  4  Denio,  9; 
State  v.  Davis,  41  Iowa,  311;  Wilson 
v.  People,  94  111.  299;  Conway  v .  Clin- 
ton, 1  Utah,  215;  State  v.  Raymond, 
11  Nev.  98;  Mimms  v.  State,  16  Ohio 
St.  22i,  McGowant'.  State,  9  Yerg.  184; 
People  v.  Gaunt,  23  Cal.  156. 

*  Brown  v.  State,  70  Ind.  576. 

6  Stephenson  v.  State,  no  Ind.  358, 
362,  distinguishing  Brown  v.  State, 
supra. 

6  Brown  v.  State,  supra. 


HARMLESS  ERROR. 


579 


appear  that  some  substantial  right  was  denied  a  party,  the  judg- 
ment can  not  be  reversed. 

§  650.  Misconduct  of  Jurors — The  general  rule,  as  declared  in 
many  cases,  is  that  a  breach  of  duty  on  the  part  of  jurors  is  not 
available  as  error  for  the  reversal  of  the  judgment,  unless  it  was 
of  such  a  character  as  to  authorize  the  inference  or  presump- 
tion that  it  injured  the  complaining  party.1  If  the  alleged  mis- 
conduct operates  in  favor  of  the  complaining  party,  he  can  not 
successfully  insist  that  the  wrong  of  the  jury  shall  be  treated  as 
available  error.2  A  party  who  expressly  or  impliedly  invites 
the  misconduct  is  not  in  a  situation  to  make  the  conduct  of  the 
juror  available  for  the  reversal  of  the  judgment.3 

§  651.  Special  Interrogatories  to  Jury — What  Rulings  are  harm- 
less although  Erroneous — It  is  not  available  error  to  refuse  to 
submit  to  a  jury  interrogatories  calling  for  conclusions  of  law.4 
Nor  is  it  prejudicial  error  to  refuse  to  submit  interrogatories 
calling  for  matters  of  evidence  merely.5     If  it  clearly  appears 


1  Cooper  v.  State,  120  Ind.  377;  Mer- 
gentheim  v.  State,  107  Ind.  567;  City 
of  New  Albany  v.  McCulloch,  127  Ind. 
500,  507;  Henning  v.  State,  106  Ind. 
3S6;  Drew  v.  State,  124  Ind.  9;  Luck?;. 
State,  96  Ind.  16;  Achey  v.  State,  64 
Ind.  56;  Long  v.  State,  95  Ind.  481, 
4S6;  Flatter  v.  McDermitt,  25  Ind.  326; 
Porter  v.  State,  2  Ind.  435;  Stutsman 
v.  Barringer,  16  Ind.  363;  Carter  v. 
Ford,  etc.,  Co.,  S5  Ind.  1S0;  McCarthy 
v.  Kitchen,  59 Ind.  500;  Medler  v.  State, 
26  Ind.  171;  Whelchell  v.  State,  23 
Ind.  S9;  Harrison  v.  Price,  22  Ind.  165; 
McClary  v.  State,  75  Ind.  260;  Morn- 
ingstar  v.  Cunningham,  no  Ind.  328; 
Indianapolis  v.  Scott,  72  Ind.  196;  Riley 
v.  State,  95  Ind.  446;  Henry  v.  Ricketts, 
1  Cranch.  C.  C.  545;  State  v.  Baker,  63 
N.  C  276;  Newell  v.  Ayers,  32  Me. 
334;  State  v.  Cucuel,  31  N.J.  L.  249; 
Portis  v.  State,  27  Ark.  360. 

2  Allen  v.  State.  61  Ga.  166;  Medler 
v.  Dunn,  26  Ind.  171. 


3  United  States  v.  Salentine,  8  Biss. 
C.  C.  404. 

4  Chicago,  etc.,  Co.  v.  Ostrander,  116 
Ind.  259;  Toledo,  etc.,  Co.  v.  Goddard, 
25  Ind.  1S5;  Pittsburgh,  etc.,  v.  Adams, 
105  Ind.  151;  Louisville,  etc.,  Co.  v. 
Worley,  107  Ind.  320;  Korrady  v.  Lake 
Shore,  etc.,  Co.  (Ind.  Sup.  Ct.),  29  N. 
E.  Rep.  1069. 

5  Louisville,  etc.,  Co.  v.  Hubbard,  116 
Ind.  193,  196;  Trentman  v.  Wiley,  85 
Ind.  33;  Manning  v.  Gasharie,  27  Ind. 
399;  Skillen  -'.Jones,  44  Ind.  136;  Gates 
v.  Scott,  123  Ind.  459;  Louisville,  etc., 
Co.  v.  Pedigo,  10S  Ind.  481;  Atchison, 
etc.,  Co.  v.  Plunkett,  25  Kan.  iSS;  Du- 
bois v.  Campau,  2S  Mich.  304;  Miner 
v.  Vedder,  66  Mich.  97,  33  N.  W.  Rep. 
47;  Louisville,  etc.,  Co.  v.  Cauley,  119 
Ind.  142,  21  N.  E.  Rep.  546;  Blacker  v. 
Slown,  114  Ind.  322;  Heiney  v.  Garret - 
son,  1  Ind.  App.  54S,  27  N.  E.  Rep.  9S9. 


ERROR    [N  JUDICIAL   PROCEEDINGS. 


that  the  facts  sought  to  be  elicited  by  the  answers  could  exert 
no  influence  upon  the  final  decision  there  is  no  error  in  refusing 
the  interrogatories,  at  all  events,  nothing  more  than  a  harmless 
error.1  Where  immaterial  or  improper  interrogatories  are  sub- 
mitted to  the  jury  there  is  no  harmful  error  in  refusing  to  com- 
pel the  jury  to  answer  them.2  There  is  no  error  in  refusing  to 
submit  an  interrogatory  that  is  not  reasonably  definite  and  spe- 
cific.3 It  is  not  error  to  refuse  to  submit  an  interrogatory  where 
another  has  been  propounded  covering  the  same  ground;4  it 
is,  indeed,  the  right  of  the  court  to  control  the  form  and  num- 
ber of  interrogatories,  so  that  specific  questions  of  fact  shall  be 
fairly  presented  to  the  jury  without  useless  repetition.5  Per- 
mitting leading  interrogatories  to  be  submitted  to  the  jury  is 
not  erroneous.6  If  erroneous  but  immaterial  interrogatories 
are  submitted  to  a  jury  the  error  is  not  an  influential  one.7  In- 
terrogatories not  asked  in  due  form  and  at  the  proper  time  may, 
as  lias  been  elsewhere  shown,  be  refused.8 


1  Indianapolis,  etc.,  Co.  v.  Stout,  76 
Ind.  !(/>;  Huston  v.  McCloskey,  76  Ind. 
38;  Mutual,  etc.,  Co.  v.  Cannon,  48 
Ind.  264;  Indianapolis,  etc.,  Co.  v. 
Rutherford,  29  Ind.  82;  Donohue  v. 
Dryer,  23  Ind.  521;  Gilmore  v.  Bright, 
101  N.  C.  3S2,  7  S.  E.  Rep.  751;  Hab- 
lichtel  v.  Yambert,  75  la.  539;  Whalen 
v.  Chicago,  etc.,  Co.,  75  la.  563,  39  N. 
W.  Rep.  894;  Van  Horn  v.  Overman, 
75  la.  421,  39  N.  W.  Rep.  679;  Kerr  v. 
Lunsford,  31  W.  Va.  659,  8  S.  E.  Rep. 
_l<^;  Northwestern  Mutual,  etc.,  Co.  v. 
Heimann,  94  Ind.  24;  Cottrell  v.  Shad- 
lej  ,  77  Ind.  348;  Boots  v.  Griffiths,  97 
Ind.  241;  Chapin  v.  Clapp,  29  Ind.  611; 

cop  V.  Rainier,  111    Ind.  361. 

2  Town  of  Albion  v.  Hetrick,  90  Ind. 
545;  Porter  v.  Waltz,  10S  Ind.  40; 
Campbell  v.  Frankem,  65  Ind.  591. 

'■'■  Morse  v.  Morse,  25  Ind.  156. 

4  Louisville,  etc.,  v.  Kane,  120  Ind. 
140;  Nichols  v.  State,  65  Ind.  512; 
Scheible  v.  Slagle,  89  Ind.  323;  Terry 
v.  Shively,y3  Ind.  413;  Ward  t'.Busack, 


46  Wis.  407;     Schreiber   v.   Butler,   84 
Ind.  576. 

6  Jewell  v.  Chicago,  etc.,  Co.,  54  Wis. 
610;  Davis  v.  Town  of  Farmington,  42 
Wis.  252;  Louisville,  etc.,  Co.  v.  Cauley, 
119  Ind.  142,  21  N.  E.  Rep.  546;  Cotz- 
hausen  v.  Simons,  47  Wis.  103;  Singer, 
etc.,  Co.  v.  Sammons,  49  Wis.  316; 
Rosser  v.  Barnes,  16  Ind.  502;  Murray 
v.  Abbott,  61  Wis.  198;  Missouri,  etc., 
Co.  v.  Ilolley,  30  Kan.  465;  City  of 
Indianapolis  v.  Lawyer,  38  Ind.  348, 
371.  "It  is  not  the  object  of  the  stat- 
ute to  permit  many  interrogatories  to 
go  to  the  jury  and  certainly  not  to  per- 
mit the  repetition  of  questions.  The 
statute  was  designed  to  elicit  material 
facts,  not  mere  items  of  evidence." 
Louisville,  etc.,  Co.  v.  Kane,  120  Ind. 
140. 

6  Rice  v.  Rice,  6  Ind.  100;  Ilarriman 
v.  Queen  Ins.  Co.,  49  Wis.  71. 

7  Indianapolis,  etc.,  Co.  v.  Rutherford, 
29  Ind.  82. 

8  Post,  §  737.  "  Request  for  the  sub- 
mission of  interrogatories  to  the  jury." 


HARMLESS  ERROR. 


581 


§  652.  Errors  in  Rulings  upon  Verdicts  that  are  regarded  as 
Harmless — The  general  rule  is  that  there  is  no  available  error  in 
refusing  to  set  aside  a  verdict  for  informalities,  irregularities  or 
defects  that  do  not  exert  a  material  influence  upon  the  final  de- 
cision of  the  case.1  Where  a  verdict  covers  the  value  of  prop- 
erty not  claimed  in  the  complaint  and  the  plaintiff  enters  a  re- 
mittitur for  a  sum  exceeding  the  value  of  the  property,  the  mis- 
take of  the  jury  exerts  no  influence  upon  the  ultimate  result, 
and  there  is  no  prejudicial  error  in  rendering  judgment  for  the 
plaintiff.2  It  is  generally  true  that  where  the  jury  find  for  a 
party  and  designate  a  sum  upon  which  interest  is  recoverable, 
leaving  nothing  to  do  in  order  to  ascertain  the  amount  of  re- 
covery but  compute  the  interest,  it  is  not  error  for  the  court 
to  make  the  computation  and  add  the  interest  to  the  sum  spe- 
cifically named  in  the  verdict.3  Surplusage  does  not  vitiate  a 
verdict,  and  an  erroneous  ruling  refusing  to  strike  out  mere 
surplusage  does  not  constitute  available  error.4     Where  the  in- 


1  Daniels  v.  McGinnis,  97  Ind.  549; 
Jones  v.  Julian,  12  Ind.  274;  Zink  v. 
Dick,  1  Ind.  App.269,  27  N.  E.  Rep.  622; 
Hall  v.  King,  29  Ind.  205;  Alexandria, 
etc.,  Co.  v.  Painter,  1  Ind.  App.  Ct.  5S7, 
2SN.E.Rep.  113;  Board  v.  Pearson,  120 
Ind.  426;  Bartley  v.  Phillipps,  114  Ind. 
189;  Carver  v.  Carver,  83  Ind.  368; 
North,  etc.,  Co.  v.  Crayton,  S6  Ga.  499, 
12  S.  E.  Rep.  877;  New  York,  etc.,  Co. 
v.  Gallagher,  79  Texas,  6S5,  15  S.  W. 
Rep.  694;  Patry  ?'.  Chicago,  etc.,  Co.,  77 
Wis.  21S;  Meeker  v.  Gardelia,  1  Wash. 
St.  139;  Jeansch  v.  Lewis  (S.  Dak.),  48 
N.W.  Rep.  12S.  See,  generally, Wood- 
ard  v.  Davis,  127  Ind.  172,  26  N.  E. 
Rep.  6S7;  Lyons  v.  Planters',  etc.,  Bank, 
86  Ga.  485,  12  S.  E.  Rep.  SS2;  Thayer 
v.  Burger,  100  Ind.  262;  State  v.  Wil- 
son, 40  La.  Ann.  751,  5  So.  Rep.  52; 
Harkey  v.  Cain,  69  Texas,  146,  6  S.  W. 
Rep.  637;  Snyder  v.  United  States, 
H2  U.  S.  216;  Lincoln  v.  Iron  Co.,  103 
U.  S.  412.     Ante,  §§  342,  343. 

2  Perkins  v.  Marrs,  15  Col.  262,  25 
Pac.Rep.  16S.  See.  generally,  Abbott  v. 


Morrissette,  46  Minn.  10,  48  N.W.  Rep. 
416;  Williams  v.  Ewart,  29  W.  Va. 
659,  2  S.  E.  Rep.  SSi;  Miles  v.  Edsall, 
7  Mont.  185,  14  Pac.  Rep.  701;  Com- 
monwealth v.  Certain  Intoxicating 
Liquors,  148  Mass.  124,  19  S.  E.  Rep. 
23;  Burlingame  v.  Central,  etc.,  Co.,  23 
Fed.  Rep.  706;  Dalrymple  v.  Willian  s, 
63  N.  Y.  361;  Cogan  v.  Ebden,  1  Burr, 

383- 

3  Buchanan  v.  Townsend  (Texas),  16 
S.  W.  Rep.  315;  Clapp  v.  Martin.  ^ 
111.  App.  438;  Thames,  etc.,  Co.  v. 
Beville,  100  Ind,  309;  Gaff  v.  Hutchin- 
son, 3S  Ind.  341 ;  McCormick  v.  Hickey, 
24  Mo.  App.  362;  Beyer  v.  Soper,  etc., 
Co.,  76  Wis.  14,  44  N.  W.  Rep.  833. 
See  contra.  Silshy  v.  Frost,  3  Wash. 
Ty.  38S,  17  Pac.  Rep.  SS7. 

*  Conner  v.  Winton,  8  Ind.  315;  Dun- 
lop  v.  Hayden,  29  Ind.  303;  Thompson 
v.  Lassiter,  85  Ala.  223,  6  So.  Rep.  33, 
Van  Meter  v.  Barnett,  119  Ind.  $*,,  20 
N.  E.  Rep.  426;  Indiana,  etc.,  Co.  v. 
Finnell,  116  Ind.  414,  19  N.  E.  Rep. 
204;  Louisville,  etc.,  Co. f.Frawley,  no 


582 


ERROR    IN  JUDICIAL  PROCEEDINGS. 


tertion  of  the  jury  is  clearly  manifested  by  their  verdict,  it  is 
not  error  for  the  court  to  make  formal  amendments  by  supply- 
ing omissions  or  the  like,  so  as  to  make  the  verdict  fully  ex- 
press the  decision  really  reached  by  the  jury,  but  not  accurately 
expressed.1  The  judge  can  not,  however,  in  any  case  where  a 
jury  trial  is  demandable  as  a  matter  of  right  so  change  the  form 
of  the  verdict  as  to  make  it  embody  his  decision  and  not  that 
of  the  jury.2 


Tnd.  iS,  29.  In  the  case  of  Louisville, 
etc.,  Co.  v.  Hart,  1 19  Ind.  273,  2S2,  it  was 
said  by  the  court:  "  If  the  matter  ob- 
jected to  is  immaterial,  the  court  will 
treat  it  as  surplusage,  and  the  party 
making  the  motion  can  not,  therefore, 
be  prejudiced  because  of  the  immaterial 
matter,  but  if  the  matter  objected  to 
is  material  then  it  should  not  be  struck 
out.  And  if  the  court  should  entertain 
a  motion  to  strike  out  a  part  of  a  ver- 
dict, then  the  verdict  would  no  longer 
be  the  verdict  of  the  jury,  but  the  find- 
ing of  the  court."  The  case  of  Louis- 
ville, etc.,  Co.  v.  Flanagan,  113  Ind. 
488,  was  cited  in  the  case  from  which 
we  have  quoted.  The  caption  to  a  ver- 
dict is  surplusage  and  an  error  therein 
is   harmless.     Rogers   v.    Overton,    87 


Ind.  410;   Miller  v.  Morgan,   143  Mass. 

25- 

1  Crich  v.  Williamsburgh,  etc.,  Co., 
45  Minn.  441,  48  N.  W.  Rep.  198;  State 
v.  Knight,  46  Mo.  S3;  Case  v.  Colter, 
66  Ind.  336;  Smith  v.  Meldren.  107 
Pa.  St.  348;  Fathman  v.  Tumulty,  34 
Mo.  App.  236;  Ilodkins  v.  Mead,  119 
N.  Y.  166,  23  N.  E.  Rep.  559;  Segelke 
v.  Finan,  48  Hun.  310;  Matthewson  v. 
Stewart,  2  How.  U.  S.  263;  Clark  v. 
Lamb,  S  Pick.  415;  Hay  v.  Osterout, 
3  Ohio,  384;  Henley  v.  Mayor,  6  Bing. 
100. 

2  McDonald  v.  Union,  etc.,  Co.,  42 
Fed.  Rep.  579;  Gaither  v.  Wilmer.  71 
Md.  361,  iS  Atl.  Rep.  590;  Acton  v. 
Dooley,  16  Mo.  App.  441,  449. 


CHAPTER   V. 


PREJUDICIAL   ERROR. 


§  653.  To  determine  whether  error  is 
prejudicial  the  entire  record 
must  be  examined. 

654.  Rulings  wherein  prejudicial  er- 

ror may  exist. 
6;:;.    Mistaking  the  remedy. 

656.  Election  of  remedies — Waiver 

of  torts. 

657.  Ordinary  and   extraordinary 

remedies. 

655.  Consequences  of  mistaking  the 

remedy  —  Making    the    error 
available. 

659.  Parties    to   the    action — Xcces- 

sary  and  proper. 

660.  Necessary   parties — Illustrative 

cases. 

661.  A  criterion  for  determining  who 

are  necessary  parties. 

662.  Who    should    be    plaint  ills    and 

who    defendants  —  General 
rule. 


§  663. 

Joinder  of  parties. 

664. 

A  righl  of  action  must  exist  in 

all  who  join  in  a  complaint. 

065. 

Pleadings  —  Motion    to    make 

specific. 

666. 

Rulings  on  demurrer. 

667. 

A  wrong  ruling  which  operates 

to    exclude    material    facts    is 

prejudicial. 

668. 

Error  once  effectively  saved  is 

sufficient. 

669. 

The  difference  between  overrul- 

ing and  sustaining  a  demurrer 

to  one  of  several  paragraphs 

of  a  pleading. 

670. 

Rulings   in    admitting  and    ex- 

cluding evidence. 

671. 

Conduct  of  the  trial. 

672. 

Misconduct  of  parties  and  coun- 
cil 

673- 

sei. 
Interrogatories  to  the  jury. 

§  653.  To  determine  whether  Error  is  Prejudicial  the  entire  Rec- 
ord must  be  Examined — Whether  a  wrong  ruling  is  of  such  a 
prejudicial  nature  as  to  authorize  or  require  a  reversal  of  the 
judgment  assailed  by  the  appeal  depends,  as  has  been  else- 
where shown,  upon  the  influence  it  exerts  upon  the  ultimate 
decision  rendered  in  the  case.1  If  it  contributes  in  a  material 
degree  to  bring  about  a  wrong  result  it  is  a  prejudicial  error 
and  will  be  so  regarded.  If  the  ruling  is  wrong  and  is  of  such 
character  and  influence  as  make  it  probable  that  it  operated 
harmfully  to  the  party  who  properly  specifies  error,  it  will  be 
available  for  a  reversal  of  the  judgment.     Whether  it  did  prob- 

1  Ante,  §  590.     "The  ultimate  ruling  is  decisive." 

(583) 


584  ERROR   IX  JUDICIAL  PROCEEDINGS. 

ably  work  harmfully  is  in  many  instances  to  be  ascertained 
from  an  examination  of  the  entire  record,  for,  if  the  facts  or 
recitals  of  the  record  are  such  as  authorize  the  inference  or 
presumption  that  a  wrong  ruling  operated,  to  the  injury  of  the 
party  who  complains,  the  judgment  must  fall.1  But  the  influ- 
ence and  effect  of  a  wrong  ruling  are  not  ordinarily  deter- 
mined by  considering  the  ruling  itself  isolated  and  detached 
from  other  parts  of  the  record  ;  on  the  contrary,  the  appellate 
tribunal  will  examine  the  entire  record,  and  if,  from  such  an 
examination,  it  appears  that  the  wrong  ruling  did  not  influence 
the  ultimate  decision  to  the  injury  of  the  complaining  party  it 
will  not  be  considered  as  prejudicial  error.2  In  general,  the 
evidence  is  not  regarded  as  part  of  the  record  proper  in  cases 
where  the  search  is  made  for  the  purpose  of  determining 
whether  a  manifestly  wrong  ruling  worked  harm,  but  there  are 
cases  where  the  evidence  will  be  regarded  as  part  of  the  record 
even  in  such  instances  as  those  wherein  the  search  is  prosecuted 
for  the  purpose  of  ascertaining  whether  a  wrong  ruling  exerted 
a  prejudicial  influence  upon  the  ultimate  decision.3 

§  654.  Rulings  wherein  Prejudicial  error  may  Exist — A  prejudi- 
cial error  exists,  as  a  general  rule,  where  a  party  is  wrongfully 
deprived  of  a  right  to  a  trial  of  his  cause  according  to  the  es- 
tablished rules  of  law  as  well  as  where  the  ruling  directly  affects 
a  primary  and  substantive  right.  Thus,  it  is  error  to  deny  a 
party  the  right  to  have  the  jury  answer  material,  proper  and 
relevant  interrogatories,  or  to  deny  him  a  trial  by  jury  where 
the  law  secures  it  to  him,  or  to  deny  him  the  right  to  the  testi- 

1  See  post,  §  666.  "A  wrong  ruling  and  not,  as  was  argued  in  this  case,  to 
which  operates  to  exclude  material  that  part  only  of  the  record  which  pre- 
facts  is  prejudicial."  cedes  and  includes   the  particular  ex- 

2  In  Hi ggins  v.  Carlton,  28  Md.  115,  S.  ception  under  consideration."  The 
C.  92  Am.  Dec.  666,  it  was  said:  "It  validity  of  the  conclusion  is  perfectly 
has  been  repeatedly  settled  bv  the  de-  clear  when  it  is  brought  to  mind  that 
cisions  of  this  court  that  a  judgment  there  are  many  instances  where  error 
will  not  be  reversed  where  it  appears  is  effectually  cured  or  completely  obvi- 
from  the  record  that  the  appellants  ated  by  other  rulings  exhibited  in  the 
have  not  been   injured  by  the  rulings  of  record. 

the  court  below,  although  such  rulings  3  Ante,  §  638.  "  Resorting  to  the  evi- 
may  be  erroneous.  For  this  purpose,  dence  to  avoid  the  effect  of  an  errone- 
it  is  proper  to  look  to  the  whole  record,     ous  ruling  upon  demurrer." 


PREJUDICIAL    ERROR. 

mony  of  competent  witnesses,  and  so  it  is  to  deny  a  recovery 
where  he  proves  the  existence  of  some  primary  right,   and  its 
wrongful  invasion,  as,  for  instance,  where  a  plaintiff  proves  a 
verbal  contract  for  the  purchase  of  land,  possession  taken  and 
improvements  made  under  the  contract,  and  the  court  refuses  to 
enforce  the  contract  upon  the  mistaken  theory  that  the  contract 
is  made  voidable  by  the  statute  of  frauds.     It  is  obvious  that  in 
such  a  work  as  this  it  is  chiefly  rulings  directly  affecting  the 
remedy  and  not  the   primary  right   that   require   consideration, 
since  a  consideration   of  substantive  or  primary  rights  is  only 
incidentally  connected   with  the  general  subject  of  the  work. 
But  while  it  is  true  that  such  a  work  as  this  deals  chiefly  and 
directly  with  rights  affecting  the  procedure,  or,  as  Mr.  Pomeroy 
calls  them,   "remedial   rights,"1  still,  primary  or  substantive 
rights  must  often   come  under  consideration  in  an  incidental 
way,  inasmuch   as  it  is  often  true  that  an  error  will  be  disre- 
garded because  the  complaining  party  shows   no  primary  or 
substantive  right.     Where  it  appears  from  the  record  that  there 
is  no  right  of  that  nature  that  can  possibly  be  injuriously  affected, 
there  can  be  no  prejudicial  error.     In  many  cases  the  courts 
have  refused  to  reverse  a  judgment,  although  the  errors  in  the 
mode  of  procedure  were  manifest,  upon  the  ground  that  the 
record  showed  that  there  was  no  substantive  right  existing  in 
the  party  by  whom  the  erroneous  rulings  were  sought  to  be 
made  available.     A  prejudicial  error  may  be  committed  where 
a  substantive  right  is  invaded  by  granting  a  kind  of  relief  not 
authorized  by  law,  as,  for  instance,  in  granting  an  injunction 
where  nothing  more  than  a  fugitive  trespass  is  shown.     So,  a 
prejudicial  error  may  be  committed  in  upholding  a  party  who 
pursues  a  wrong  remedy,  as,  for  instance,  in  awarding  a  man- 
damus to  coerce  performance  of  an  ordinary  business  contract 
entered  into  between  individual  citizens.     Again,   prejudicial 
error  may  be  committed  in  permitting  a  recovery  in  a  proceed- 
ing of  one  class  where  it  would  not  be  error  to  award  a  recov- 
ery in  another  proceeding.     Thus,  a  party  may  by  appeal  re- 

1  "  Remedial  righte,  or  rights  of  rem-  more  of  these  final  means,  or  to  avail 
edv,  are  rights  which  an  injured  person  himself  of  some  or  more  of  these  final 
has   to    avail    himself   of   some    one   or     equivalents."      Romeroy's   Remedies.  3. 


586  ERROR   IN  JUDICIAL  PROCEEDINGS. 

cover  in  a  case  where  lie  seeks  to  avoid  an  assessment  for  the 
construction  of  a  ditch,  a  street  or  a  road,  and  yet  fail  in  an 
injunction  proceeding. 

§  655.  Mistaking  the  Remedy — Where  the  common  law  pre- 
vails errors  in  choosing  the  remedy  much  oftener  occur  than  in 
jurisdictions  where  the  code  system  is  in  force.  A  party  who 
declared  in  assumpsit  when  the  appropriate  action  was  debt 
could  not  recover  at  common  law  because  his  error  was  a  ma- 
terial one.  But,  while  there  is  much  less  danger  of  mistaking 
the  remedy  under  the  code  system  than  there  is  under  the  com- 
mon law,  there  is,  nevertheless,  danger  of  electing  the  wrong 
remedy  under  the  code  system,  liberal  as  it  is  and  little  as  it 
regards  matters  of  form.  There  are  many  matters  affecting 
the  remedy  that  lie  beneath  form  and  are  matters  of  substance. 
The  declaration  of  the  statute  that  forms  of  actions  are  abol- 
ished does  not  abrogate  the  distinction  between  substantive 
rights  of  radically  different  classes,  nor  does  it  entirely  abrogate 
the  distinction  between  different  classes  of  remedial  rights.1  It  is 
clear  that  a  prejudicial  error  may  occur  in  choosing  the  remedy 
even  under  the  liberal  system  created  by  the  provisions  of  the 
code,  although  much  less  likely  to  occur  than  under  the  com- 
mon law  rules  of  procedure.  Remedies  are  and  must  always 
be  essentially  different,  no  matter  what  system  may  prevail. 
Thus,  a  complaint  for  mandate  must  plead  a  state  of  facts  rad- 
ically different  from  those  required  in  an  ordinary  action  for  a 
breach  of  contract.     Even  in  actions  of  the  same  general  class 

1  In  Myers  v.  Field,  37  Mo.  434,  441,  erence  to  these  distinctions,  though  in 

it  was  said:     "The  distinction  between  the  form  prescribed  by  statute.     Where 

law  and  equity  has  not  been  abolished  the  petition  is  framed  for  legal  redress, 

by  the  new  code  of  practice.     Equitable  the  plaintiff  can  not  be  allowed  to  prove 

rights  are  still  to  be  determined  accord-  his  equitable  rights,  though  the  facts  be 

ing  to  the  doctrine   of  equity  jurispru-  stated  to  some  extent  in    his  petition, 

dence,  and  in  the  peculiar  modes  which  If  he    seeks  equitable    relief,  the  facts 

are  sometimes  required    in   such  cases,  must  be   stated   in   such   manner  as  to 

and  legal  rights   are   to  be  ascertained  show    that    he    is  entitled  to  the  relief 

and   adjudged   upon  principles  of  law;  prayed  for  under  the  former   practice, 

and  the  rules  of  proceeding  at   law  are  if  he  claims  redress  at  law  the  essential 

in   many   respects   very   different   from  elements  of  his  cause  of  action  must  be 

those  which  are  applied  to  equity  cases,  stated    with    reasonable   certainty    and 

Pleadings  should  be  drawn  up  with  ref-  clearness'* 


PREJUDICIAL    ERROR.  587 

there  must  be  some  definite  theory  to  which  the  facts  pleaded 
are  applicable  and  relevant,  for  without  such  a  theory  no  definite 
and  distinct  issue  could  be  framed,  and  without  such  an  issue 
no  case  can  be  properly  tried.  It  would  be  impossible  to  de- 
termine whether  evidence  is  relevant  or  whether  a  judgment  is 
within  the  issues  unless  there  is  a  definite  theory  outlined  in 
the  pleadings  so  that  it  is  rightly  held,  as  it  has  often  been,  that 
a  pleading  must  proceed  upon  a  definite  theory.1 

§  656.  Election  of  Remedies— Waiver  of  Torts— The  long  estab- 
lished principle  that  a  party  may  elect  to  waive  a  right  to  sue  in 
tort  and  sue  in  contract  exists  under  the  code  system.2  It  is, 
indeed,  difficult  to  conceive  how  the  substantive  principle  can 
be  abrogated  without  producing  injustice.  As  long  as  the  right 
to  elect  exists,  that  long  the  question  of  what  theory  shall  be 
adopted  will  be  an  important  one,  exerting  a  very  material  in- 
fluence upon  the  choice  of  remedies.  This  conclusion  must  be 
inexorably  true,  for  the  manifest  reason  that  in  no  other  way 
can  the  waiver  be  indicated  than  by  the  theory  of  the  pleading, 

1  Illinois,  etc.,  Co.  v.  Slatton.  54  111.  R.  R.  Cases,  123;   Waldhier  v.  Hanni- 

133;    Michigan,   etc.,    Co.    v.   McDon-  bal,  etc.,  Co.,  71  Mo.  514. 
ough,   21    Mich.  165,   S.  C.4Am.  Rep.        2  Shelly  v.  Vanarsdoll,   23  Ind.  543; 

466;  Lake   Shore,  etc.,  Co.  v.  Perkins,  Adams  v.  Sage,  28  N.  Y.  103;   Wilmot 

25  Mich.  329;    Lockwood  v.  Quacken-  v.  Richardson,  2    Keyes   (N.  Y.).   519; 

bush,  S3  N.  Y.  607;  Judy  v.  Gilbert,  77  Bixbie  v.  Wood,  24  N.  Y.  607;  Union 

Ind.  96,  S.  C.  40  Am.  Rep.  289;  Mes-  Bank  v.  Mott,  27  N.  Y.  633;  Mcknight 

call    v.  Tully,   91    Ind.   96,    and    cases  v.   Dunlap,  4  Barb.    36,  42;   Hinds    v 

cited;     Moorman    v.    Wood,  117   Ind.  Tweedle,    7    How.     Pr.    R.   27S,    2S1 

144,     147,     and      cases     cited;      Pear-  Harpending   v.    Shoemaker,   37    Barb 

son    v.    Pearson,    125    Ind.    341,   344,  270;  Chambers  v.  Lewis,   2    Hilt  (N 

and  cases  cited;  Chicago,  etc.,  Co.  v.  Y.),  591;  Leach  v.  Leach,  2T.  &  C.(N 

Bills,   104   Ind.   13;  Trentman   v.  Neff,  Y.)  657;  Tryon  v.  Baker,  7  Lans.  511, 

124  Ind.   503;  Bingham   v.   Stage,    123  514;  Roberts   v.    Evans,    43    Cal.  3S0; 

Ind.  281,   285;  First  National  Bank  v.  Gordon    v.    Bruner,  49  Mo.    570,    571; 

Root,   107  Ind.  224;  Cottrell  v.  .Etna  Putnam  v.  Wise,  1  Hill,  234.240;  Berty 

Life  Ins.  Co.,  97  Ind.  311;  Toledo,  etc.,  v.  Taylor,  5    Hill,  577,  584;  Norden  :  . 

Co.  v.  Levy,  127  Ind.  168, 170, and  cases  Jones.  33  Wis.  600,  604;  Campbell   v. 

cited;  Louisville,  etc.,  Co.  v.  Reynolds,  Perkins.  8  N.  Y.  430;  Wallace  V. 
118  Ind.  170;  Harris  v.  Hannibal,  etc.,  Morss,  5  Hill,  391;  Roth  v.  Palmer.  27 
Co.,  37  Mo.  307;  Batterson  v.  Chicago,  Barb.  652;  Wigand  v.  Sichel,  3  Keys 
etc.,  Co.,  49  Mich.  184,  8  Am.  &  Eng.     (N.  Y.).  120;  Morris  v.  Rexford,  iS  N. 

Y.552. 


588  ERROR  IN  JUDICIAL  PROCEEDINGS. 

since  names  go  for  nothing,  as  there  is  but  one  form  of  action, 
and  the  prayer  does  not  give  character  to  the  pleading.  Its 
character  is  to  be  determined  from  its  general  tenor  and  scope.1 
The  election  to  waive  the  tort  may  exert  a  controlling  influence 
upon  the  question  of  parties,  inasmuch  as  where  the  action  is 
ex  delicto  parties  may  be  severally  liable,  whereas  in  an  action 
ex  contractu  the  liability  may  be  joint.2  So,  the  mode  of  stating 
the  facts  may  change  the  character  of  a  case  so  as  to  require 
more  or  different  evidence,  although  the  case  may,  however 
the  tacts  may  be  stated,  belong  to  the  class  of  actions  ex  delicto. 
Thus,  in  a  reported  case,  a  plaintiff  sued  for  injury  done  by  a 
sow  of  the  defendants  which  went  upon  the  plaintiff's  land  and 
injured  his  cow,  but  as  he  did  not  sue,  as  he  might  have  done, 
for  the  trespass,  laying  the  injury  to  the  sow  as  a  matter  of  ag- 
gravation, he  lost  his  case  because  of  a  failure  to  prove  the 
vicious  propensity  of  the  sow,  although  he  would  have  gained 
it  had  he  sued  for  damages  resulting  from  the  trespass.3  A 
mistake  in  the  election  of  a  remedy  may  bring  disaster  in  cases 
of  a  different  class  from  those  mentioned.  Thus,  where  an  in- 
fant is  sued  in  contract  instead  of  in  tort,  the  plea  of  infancy 
may  enable  him  to  avoid  liability,  although  if  sued  in  tort  the 
plea    would  not    have  availed    him.4     The  remedy  sometimes 

•Over  v.  Schiffling,  102  Ind.  191;  Hunt  v.  Lane,  9  Ind.  24S;  Silvers  V. 
City  of  North  Vernon  v.  Yoegler,  103  Nerdlinger,  30  Ind.  53. 
Ind.  314;  Louisville,  etc.,  Co.  v.  3  Van  Leuven  v.  Lyke,  1  N.  Y.  515. 
Schmidt,  106  Ind.  73;  First  National  See,  for  an  illustration  of  the  conse- 
Bank  v.  Root,  107  Ind.  224;  Houck  quences  of  mistaking  the  remedy, 
7\  Graham,  106  Ind.  195;  Neidefer  v.  Campbell  v.  Stakes.  2  Wend.  137.  As 
Chastain,  71  Ind.  363,  S.  C.  36  Am.  illustrating  the  extent  to  which  the  law- 
Rep.  19S;  Reynolds  v.  Copeland,  71  goes  in  allowing  incidental  damages  in 
Ind.  422;  Ivens  v.  Cincinnati,  etc.,  Co.,  cases  of  trespass  quare  clausum  fregit^ 
103  Ind.  27;  State  v.  Wenzel,  77  Ind.  see  Bennetl  v.  Mclntyre.,  121  Ind.  231, 
428.  2^y,   Rasor    v.    Quails.    4    Blackf.  286; 

2  The  rule  as  to  contracts  is  stated  in  Taylor  v.  Cole.  3  Term  R.  292;   Daven- 

the  eases  of  Bledsoe    v.  Irvin,  35    Ind.  port  :•.  Russell,  5  Day,  145;   Bennett  v. 

293;     Gilbert     v.  Allen,    57     Ind.    524;  Allcott,  2  Term.  R.  166. 

Boorum  v.  Ray,  72  Ind.  151.     The  rule  4  Campbell    v.  Stakes,   2  Wend.  137; 

in   cases  of  torts  is  shown  in   the  cases  Studwell    :\    Shapter,    154    N.    Y.    249; 

•  it    Brady  :•.  Ball,   14   Ind.  317;    Ameri-  Fish  v.  Ferris,  5  Duer.  49;   Wallace  v. 

cm  Express  Co.  v.   Patterson.  73   1  ml.  Morss,  5  Hill,  391;   Wralker  v.  Davis,  1 

430;  Fleming  v.  McDonald,  50  Ind.  278;  Gray,   506.     See,   generally,    Vasse   v. 


PREJUDICIAL    ERROR.  589 

exerts  an  important  influence  upon  the  defense  of  the  statute  of 
limitations,  for  it  may  he  prejudicial  error  to  apply  a  statute 
governing  one  class  of  actions  to  actions  of  a  different  class.1 
Thus,  a  party  sued  as  a  trustee  may  be  unable  to  make  the 
statute  of  limitations  available,  whereas  if  sued  upon  a  promise 
the  plea  of  the  statute  would  be  good.2  A  defense  founded 
upon  a  discharge  in  bankruptcy  may  be  good  in  an  action  ex 
contractu  and  yet  not  available  in  an  action  ex  delicto.  But 
where  the  relationship  is  shown  to  be  a  fiduciary  one,  the  na- 
ture of  the  remedy  is  not  controlling.  A  right  to  a  set-off  may 
exist  where  the  action  is  in  contract,  but  not  where  the  action  is 
in  tort.3  Where  a  party  elects  to  waive  the  tort  and  sue  upon 
the  contract  he  may  let  in  the  claim  of  the  defendant,  whereas 
he  might  by  an  action  in  tort  have  recovered  a  judgment  against 
which  the  right  of  exemption  could  not  be  made  available.4  If 
an  election  is  once  effectively  made  it  is  irrevocable,  and  a  judg- 
ment rendered  is  conclusive  upon  the  same  facts  against  the 
plaintiff,  but  this  rule  does  not  always  apply  to  a  plaintiff  who 
suffers  defeat  solely  upon  the  ground  that  he  did  not  pursue  the 
appropriate  remedy.5 

§  657.  Ordinary  and  Extraordinary  Remedies— The  rule  that 
where  an  ordinary  remedy  will  afford  full  and  complete  relief 

Smith,   6  Cranch.  225,  230;    Elwcll  v.  ner  v.  Cammack.  37  Iowa,  642;  Schou- 

Martin,  32  Vt.  217;   Towne  V.  Wiley,  23  ton    v.    Kilmer,    8     How.    Pr.   527.     In 

Vt.    354;  Root   v.  Stevenson,    24    Ind.  Nowling  v.  Mcintosh,  So.  Ind.  593.  the 

115;  Carpenter    v.  Carpenter,   45  Ind.  doctrine  stated  in  the  text  is  recognized, 

142;   Rice  v.  Bover.  10S  Ind.  472.  but    it  was    held    that  the  tort  was  not 

1  Huffman  t-.Hughlett.ii  Lea(Tenn.),  waived.  The  court  cited  the  cases  of 
549;  McComhs  v.  Guild,  9  Lea,  Si.  Patterson  v.  Crawford.  12  Ind.  241; 
See,  generally,  Lane  v.  Boicourt,  12S  Patterson  v.  Prior,  iS  Ind.  440;  Jones 
Ind.  420.  V.  Gregg.  17  Ind.  S4;  Morford  :•.  White, 

2  Wilson  v.  Brookshire,  126  Ind.  497;  53  Ind.  547;  Cooper  v.  Helsabeck,  5 
Cunningham  v.  McKindley, 22  Ind.  149;  Blackf.  14. 

Albert  v.  State,  65  Ind.  413;  Raymond  B  Bulklej    v.   Morgan,  46  Conn.  393; 

v.   Simonson,    4  Blackf.    77;   Smith    v.  Bailey  :■.  Hervev.  135  Mass.  172;   Mol- 

Callowav,  7  Blackf.  S6;  Churchman  v.  ler  v.   Tuska,  S7  NY.  166;   Dibblee  v. 

City  of  Indianapolis,  no  Ind.  259.  Sheldon,    10    B latch.    17S;     Farwell    v. 

3  Allen  v.  Randolph,  48  Ind.  496;  Myers,  59  Mich.  179;  Voorhees  v. Earl, 
Chambers  v.  Lewis,  11  Abb.    Pr.  206.  2    Hill,   2SS;  Goss  v.  Mather,  2   Lans. 

*  Davis  v.  Henson,  29  Ga.  345;   War-     2S3;   Strong  ;•.  Strong,  102  N.  Y.  69,  73. 


590 


ERROR  IN  JUDIC]  vl.   PROCEEDINGS. 


rt  can  not  be  made  to  an  extraordinary  one  is  almost  as 
potent  under  the  code  procedure  as  it  was  under  the  old  com- 
mon law  and  chancery  systems.  A  party  who  states  a  cause 
of  action  entitling  him  to  only  ordinary  relief  can  not,  upon 
that  cause  of  action,  obtain  extraordinary  relief.1  Where  the 
ordinary  remedy  is  adequate  and  efficacious  that  remedy  must 
be  pursued.2  The  general  doctrine  stated  is,  perhaps,  more 
frequently  applied  in  cases  where  injunctions  are  sought 
than  in  any  other  class  of  cases,  and  it  is  uniformly  held  that 
where  an  ordinary  remedy  will  afford  complete  and  prompt  re- 
lief an  injunction  will   not   be   awarded.3     The  redress  by  in- 


1  We  are  not  speaking  of  legal  and 
equitable  remedies,  we  may  say,  to  pre- 
vent possible  misconception,  but  of 
ordinary  and  extraordinary  remedies. 

2  "  It  is  not  enough  that  there  is  a  rem- 
edy at  law;  it  must  be  plain  and  ade- 
quate, or  in  other  words,  as  practical 
and  efficient  to  the  ends  of  justice  and 
its  prompt  administration,  as  the  remedy 
in  equity."  By  the  court  in  Watson  v. 
Sutherland,  5  Wall.  74.  This  doctrine 
has  been  adopted  and  enforced  by  our 
own  and  other  courts.  English  v. 
Smock,  34  Ind.  115,  124,  S.  C.  7  Am. 
Rep.  215;  Elson  v.  O'Dowd,  40  Ind. 
300,  302;  Clark  v.  Jeffersonville,  etc., 
Co.,  44  Ind.  24S;  Thatcher  v.  Humble, 
67  Ind.  444;  Spicer  v.  Hoop,  51  Ind. 
365,  370;  Bonnell  v.  Allen,  53  Ind.  130; 
Bishop  -'.  Moorman, 98  Ind.  1,4;  Denny 
V.  Dennv.  113  Ind.  22,  26;  City  of  Hart- 
ford v.  Chipman,  21  Conn.  4SS;  Scott  v. 
Scott,  33  Ga.  102;  Bunce  v.  Gallagher,  5 
Blatchf.  4S1;  Hunt  v.  Danforth,  2  Curt. 
(C.  C.)  592;  Witter  v.  Arnett,  8  Ark. 
57;  Mc Daniel  v.  Lee.  37  Mo.  204; 
Morris  v.  Thomas,  17  111.  112.  The 
Supreme  Court  of  Pennsylvania  holds 
a  very  liberal  doctrine  upon  the  general 
subject,  for  it  has  adjudged  that  it  is 
sufficient  to  authorize  the  employment 
of  an  equitable  remedy  where  it  appears 
to  be  the  more  convenient  one.  Bier- 
bowers'  Appeal.  107  Pa.  St.   14;   Kirk- 


patrick  v.  M'Donald,  11  Pa.  St.  387; 
Appeal  of  the  Brush  Electric  Co.,  114 
Pa.  St.  574,  585.  The  authorities  to 
which  we  have  referred  are  generally 
directed  to  the  question  of  the  right  to 
resort  to  an  ordinary  equitable  remedy 
where  there  is  some  legal  remedy,  but 
they  all  have  an  important  bearing  upon 
the  general  question  of  the  right  to  re- 
sort to  an  extraordinary  remedy  where 
the  ordinary  remedy  is  inadequate  or 
inefficacious. 

3  Sparling  v.  Dwenger,  60  Ind.  72; 
McQuarrie  v.  Hildebrand,  23  Ind.  122; 
White  Water  Valley,  etc.,  Co.  v.  Com- 
egys,  2  Ind.  469;  Laughlin  v.  City  of 
Lamasco,  6  Ind.  223;  Indianapolis,  etc., 
Co.  v.  City  of  Indianapolis,  29  Ind.  245; 
Centreville,  etc.,  Co.  v.  Barnett,  2  Ind. 
536;  Bolster  v.  Catterlin,  10  Ind.  117; 
Hartman  v.  Heady,  57  Ind.  545;  Smith 
v.  Goodknight,  121  Ind.  312;  Caskey  v. 
City  of  Greensburgh,  78  Ind.  233;  Rick- 
etts  v.  Spraker,  77  Ind.  371;  Hendricks 
v.  Gilchrist,  76  Ind.  369;  Bass  v.  City 
of  Fort  Wayne.  121  Ind.  389;  Marshall 
V.  Gill,  77  Ind.  402,  and  cases  cited. 
Sims  v.  City  of  Frankfort,  79  Ind.  446, 
and  cases  cited.  Littleton  v.  Smith, 
119  Ind.  230;  Terre  Haute,  etc.,  Co.  v. 
Soice,  12S  Ind.  105,  and  cases  cited. 
Pearson  v.  Pierson,  12S  Ind.  479; 
Cooper  v.  Hamilton,  S  Blackf.  377; 
Thatcher  v.  Humble,  67  Ind.  444;   Bar- 


PREJUDICIAL  ERROR. 

junction  is  of  an  extraordinary  character,  and  because  it  is 
such,  and  not  simply  because  it  is  an  equitable  remedy,  resort 
to  it  is  forbidden  where  an  ordinary  remedy  properly  pursued 
would  yield  all  the  relief  the  party  is  entitled  to  either  in  a 
court  of  conscience  or  a  court  of  law.  Some  of  the  cases,  we 
venture  to  say,  go  rather  too  far  in  the  direction  of  holding 
that  the  line  between  suits  in  equity  and  actions  at  law  is  as 
broad  as  it  was  before  the  adoption  of  the  code  system,  for 
where  the  facts  are  well  and  fully  stated  the  court  will  apply 
the  proper  remedy,  by  administering  either  legal  or  equitable 
rules  as  the  facts  stated  may  require,  but  this  does  not  imply 
that  a  party  can  plead  facts  entitling  him  to  a  remedy  of  one 
class  and  secure  a  remedy  of  a  radically  different  class.1  He 
can  not  make  a  case  of  one  class  and  secure  relief  grantable 
in  a  case  belonging  to  a  class  altogether  different.  Thus,  a 
party  who  states  facts  entitling  him  to  sue  for  a  breach  of  con- 
tract does  not  state  a  cause  of  action  entitling  him  to  relief  by 
injunction.2  It  happens  not  unfrequently  that  parties  fall  into 
fatal  error  by  instituting  proceedings  for  a  writ  of  mandate 
where  the  appropriate  remedy  is  an  ordinary  action  for  dam- 
ages resulting  from    a   breach   of  contract.3      Parties   mistake 

agree  *'.  Cronkhitc,  33  Ind.192;  Schwab  for  the  purpose  of  showing  the  various 
v.  City  of  Madison,  49  Ind.  329;  Dun-  applications  of  the  rule. 
can  :\  I  lollidaysburgh,  etc.,  Co.,  136  l  Morgan  v.  Lake  Shore,  etc.,  Co. 
Pa.  St.  478;  Hagerty  v.  Lee  (N.  J.),  21  (Ind.).  28  N.  E.  Rep.  54S. 
Atl.  Rep.  933;  Turner  V.  Norton,  31  2  Ricketts  V.  Speaker.  77  Ind.  371. 
111.  A. pp.  423;  Shepherd  T'.  GrotT,  34  W.  3  State  :■.  Trustees,  etc.,  114  Ind.  389; 
Va.  123.  11  S.E.  Rep.997;  Spitz  v.  Ker-  Marshall  v.  State,  ]  Ind.  72;  Harrison 
foot,  42  Mo.  App.  77;  Steinau  v.  Cin-  School  Tp.  v.  McGregor,  96  [nd.  [85; 
cinnati,  etc.,  Co.  (Ohio),  27  N.  E.  Rep.  Board  v.  1  licks,  2  Ind.  527;  Hoard  v. 
^4 q ;  Salt-bur-  Gas  Co.  v.  Borough,  State.  11  Ind.  205;  Louisville,  etc.,  Co. 
etc.,  13S  Pa.  St.  250,  20  Atl.  Rep.  844;  v.  State,  25  [nd.  177;  State  v.  Board, 63 
Hemslev  v.  Myers,  45  Fed.  Rep.  283;  Ind.  407:  Board  v.  State.  38  Ind.  193, 
Thompson  v.  Weeks,  32  111.  App.  042;  [96;  State  v.  Board,  45  Ind.  501 ;  Shelby 
Thomas  v.  Musical,  etc.,  Union,  121  X.  Tp.  v.  Randies,  57  Ind.  390;  Hollidayv. 
Y.  45;  Bodman  v.  Lake  Fork,  etc.,  Co*.,  Henderson,  67  Ind.  103;  State  v.  Snod- 
132111.431);  Diffendal  v.  Virginia,  etc.,  grass,  98  Ind.  546;  State  v.  Zanesville, 
Co.,  S6  Va.  459.  We  have  cited  these  etc..  Co..  [6 Ohio  St.  308;  State  v.  Pat- 
cases  not  so  much  for  the  purpose  of  terson,  etc.,  Co.,  43  X.J.  L.  505;  State 
supporting  our  statement  of  the  general  v.  Republican  River,  etc.,  Co..  20  Kan. 
rule  (for  that  is  so  firmly  settled  as  to  404;  People  V.  Dulanev,  96  111. 
need  no  support  from  decided  cases)  as  Collett  v.  Allison   (Oki.),  25  Pae.  Rep. 


■r)92 


ERROR  IN    JUDICIAL  PROCEEDINGS. 


their  remedy  in  some  instances  by  selecting  the  wrong  remedy 
although  both  remedies  are  extraordinary  ones.  Thus,  a  party 
claiming  an  office  mistakes  his  remedy  when  he  seeks  posses- 
sion or  control  of  the  office  by  a  suit  for  injunction  instead  of 
by  an  information  in  the  nature  of  a  quo  warranto}  In  a  sim- 
ilar class  of  cases,  that  of  attacks  upon  corporate  existence, 
parties  mistake  their  remedy  by  attacking  the  existence  of  the 
corporation  collaterally,  or  by  adopting  some  other  remedy  than 
quo  warranto,  which  is  in  all  such  cases  the  appropriate  remedy.2 
On  the  other  hand,  fatal  mistakes  are  sometimes  made  by  pro- 
ceeding by  information  in  the  nature  of  a  quo  warranto,  in 
cases  where  the  appropriate  remedy  is  an  ordinary  action  to 
recover  damages  for  injury  resulting  from  an  invasion  of  a 
mere  private  right,  as,  for  instance,  in  the  case  of  a  trespass 
upon  land.3 


516;  People  v.  Board,  60  Hun.  4S6,  5S4, 
15  N.Y.  Supp.  30S.  Where  there  is  an 
adequate  remedy  by  appeal  a  party  can 
not  have  a  writ  of  mandamus.     White 


Mich.  72,  S.  C.  51  Am.  Rep.  SS;     Frey 
v.  Michie,  6S  Mich.  323. 

2  Bateman  v.  Florida,  etc.,  26  Fla.  423, 
8  So.  Rep.  51;   State  v.  Bailey,  16   hid. 


7'.  Burkett,  119  Ind.  431;   State  v.  Board,     46;  Danville,  etc.,  Co.  v.  State,  16  Ind. 


45  Ind.  501.  As  illustrating  the  differ- 
ence between  actions  for  a  breach  of 
contract  and  an  action  to  compel  the 
specific  performance  of  duty  by  an  of- 
ficer   having  money   in  his   hands  due 


456;  State  v.  Town  of  Tipton,  109 
Ind.  73;  Albert  v.  State,  65  Ind.  413; 
Brookville  &  Greensburgh  Turnpike, 
etc.,  Co.  v.  McCarty,  8  Ind.  392; 
Baker  v.   Neffj  73   Ind.  6S;    Logan   v. 


the   petitioner,  see  Ingerman  v.  State,     Vernon,  etc..  Co.,  90  Ind.  552;  State  v 


128  Ind.  22^. 

1  Beal  v.  Ray.  17  Ind.  554;  Case  v. 
State.  69  Ind.  46;  McGee  v.  State,  103 
Ind.  444:  Reynolds  v.  State,  61  Ind. 
392;  Gass  v.  State,  34  Ind.  425;  Griebel 


Woodward,  S9  Ind.  no;  State  v.  Beck, 
Si  Ind.  500;  North  v.  State,  107  Ind. 
356;  Barren  Creek,  etc.,  Co.  v.  Beck, 
99  Ind.  247;  Western,  etc.,  Co.  v.  Cen- 
tral, etc.,  Co.,  116  Ind.  229;  Cincinnati, 


v.  State,  in  Ind. 369, 12  N.  E.  Rep.  700;     etc.,  Co.  v.  Clifford,  113  Ind.  460;    Jus- 


Osborne  v.  State,  12S  Ind.  129,  and 
eases  cited.  Williams  V.  State,  69 
Texas,  368,  6  S.  W.  Rep.  845;  State  :•. 
Owens,  63  Texas,  261;  State  V.  Mec- 
han,  45  N.  J.  Law,  189;  Davidson  v. 
State,  20  Fla.  784;  Osgood  v.  Jones, 
\.  II.  543;  French  t'.  Cowan,  79  Me. 
426;  Tarbox  v.  Sughrue.  36  Kan.  225: 
State  v.  Board,  39  Kan.  85,  19  Pac. 
Rep.  2;  Collins  r\  I  luff,  63  Ga.  207; 
People  v.  Waite.  70  111.  25;  Territory 
v.  Haxhurst,  3  Dak.  205;  State  v.  Stein, 
13  Neb.  529;     Farrington  v.  Turner,  53 


sen  v.  Board,  95  Ind.  567;  White  v. 
State,  69  Ind.  273;  Covington,  etc., 
Plank  Road  Co.  v.  Moore,  3  Ind.  510; 
State  v.  Trustees,  etc.,  5  Ind.  77;  Stoops 
v.  Greensburgh,  etc.,  Co.,  10  Ind.  47; 
President,  etc.,  v .  Hamilton,  34  Ind.  506; 
John  v.  Farmers,  etc.,  Bank,  2  Blaekf. 
367,  S.  C.  20  Am.  Dec.  119;  Williams 
-•.Citizens  Ry.Co.  (Ind.),  29  N.  E.  Rep. 
408. 

3  State  v.  Kill  Buck  Turnpike  Co.,  38 
Ind.  71;  People  V.  Hillsdale,  etc.,  Co., 
2  Johns.  190. 


PREJUDICIAL   ERROR. 


§  658.  Consequences  of  Mistaking  the  Remedy — Making  the  Er- 
ror Available — It  seems  quite  clear  that  where  there  is  a  radi- 
cal mistake  in  electing  a  remedy,  there  is  an  influential  error 
affecting  the  final  decision  in  the  particular  case.  We  suppose, 
however,  that  a  mistake  in  the  remedy  is  not  always  available 
as  error  unless  tin-  question  is  properly  made  and  saved  in  the 
trial  court.  This  conclusion  is  in  harmony  with  the  general 
principle  that  where  parties  proceed  upon  a  definite  theory  in 
the  court  below  they  will  be  held  to  that  theory  on  appeal,1  and 
it  is  also  in  strict  and  close  harmony  with  the  general  rule  that 
questions  not  presented  to  the  trial  court  will  be  deemed 
waived.2  The  doctrine  we  state  has  been  applied  to  a  case 
wherein  no  objection  was  made  to  the  remedy.3  The  rule  under 
the  old  system,  where  the  line  was  closely  drawn  between  the 
jurisdiction  of  the  courts  of  chancery  and  the  courts  of  law  and 
each  inch  of  borderland  as  stoutly  fought  for  as  was  ever  a  dis- 
puted borderland  between  hostile  tribes,  was  that  if  no  objec- 
tion was  made  in  the  court  of  original  jurisdiction  none  could 
be  successfully  made  on  appeal,4  and  certainly  the  rule  should 

King,  6  X.  Y.  147;  Cox  v.  James.  45 
X.  Y.  557;  Green  v.  Milbank,  3  Abb. 
New  Cases,  13S;  Pani  v.  Vilmar,  54 
How.  Pr.  235.  The  rule  proceeds  upon 
the  basis  that  parties  may  by  their  mu- 
tual assent   litigate  their  differences  in 


1  Ante,  Chapter  XXIV,  "Holding 
parties  to  trial  court  theories." 

2  Ante,  Chapter  XXIII,  "  Questions 
that  may  be  first  made  on  appeal." 

3  In  the  case  of  Town  of  Mentz  v. 
Cook,  10S  N.Y.  504,  15  X.  E.  R.  541,  the 
plaintiff  filed  a  complaint  for  an  injunc- 
tion, the  appellant  did  not  by  answer  or 
demurrer  challenge  his  right  to  an  in- 
junction in  the  trial  court,  but  he  did 
challenge  it  on  appeal,  and  the  court  held 
that  the  appellant's  position  was  unten- 
able, saying:  "The  answer  admitted  the 
authority  of  the  chosen  forum  to  deter- 
mine the  issues  presented  and  made  no 
efforts  to  withdraw  them  from  that  tri- 
bunal. It  appears  to  be  settled  lu  a 
very  general  concurrence  of  authority 
that  a  defendant  can  not  when  sued  in 
equity  avail  himself  of  the  defense  that 
an  adequate  remedy  at  law  exists  un- 
less he  pleads  it  in  his  answer.  Gra- 
din  v.  Le  Roy,  -'  Paige,  501 >:  Le 
Roy  -'•   Piatt,  4  Paige.  77;  Truscott  v. 

38 


a  court  of  equity,  where  the  assent  of 
the  defendant  if  withheld  might  induce 
the  court  to  refrain  from  the  exercis 
its  jurisdiction."  The  case  from  which 
we  have  quoted  is  approved  in  the  case 
of  Buffalo,  etc.,  Co.  r.  Delaware,  etc.. 
Co.  (X.  Y.),  29  X.  E.  Rep.  121.  and  its 
doctrine  extended  to  a  case  where  the 
defendant  failed  to  object  in  the  trial 
court  to  the  remedy  of  mandamus 
adopted  by  the  plaintiff.  It  was  said: 
"  Tin-  objection  not  having  been  taken 
by  answer  or  on  the  trial  is  not  avail- 
able in  this  court." 

1  Amis    v.    Myers,  id   How.    (U 
492,493;   Bank  of  Utica  v.  Mersereau,  3 
Barb.  Ch.    52S;  Cummings   v.   Mayor, 
11    Paige,  596;  Creeley   v.  Bay   State. 


594  ERROR  INJUDICIAL  PROCEEDINGS. 

be  no  less  liberal  in  favor  of  the  rightful  exercise  of  jurisdic- 
tion under  the  code  system  which  goes  so  far  towards  breaking 
down  all  distinctions.  It  is,  as  we  believe,  safe  to  say  that  the 
general  rule  is,  that  where  the  wrong  remedy  is  chosen  and  no 
objection  is  interposed  in  the  trial  court  at  any  stage  of  the  pro- 
ceedings, the  presumption  is  that  the  parties  assented  to  the 
theory  that  the  remedy  adopted  was  the  appropriate  one.  This 
general  rule  can  not,  however,  apply  where  there  is  no  general 
jurisdiction  of  the  subject  of  the  controversy,  or  no  right  in  any 
case  to  administer  the  remedy  selected.  If,  for  instance,  a 
court  has  no  right  in  any  case  to  entertain  jurisdiction  in  quo 
warranto  proceedings,  silence  would  not  preclude  a  party  lrom 
successfully  making  the  objection  on  appeal.  This  general 
doctrine  would  also  be  controlling  where  a  court  is  expressly 
inhibited  from  entertaining  jurisdiction  in  cases  where  consti- 
tutional questions  are  involved,  and  in  cases  where  actions  of  a 
designated  class  are  expressly  and  imperatively  excluded  from 
its  jurisdiction.  It  would  not,  however,  prevail  where  there  is 
general  jurisdiction  of  the  subject  and  the  only  error  or  irregu- 
larity is  in  the  election  of  one  of  several  of  the  remedies  which 
the  court  has  jurisdiction  to  administer. 

§  659.   Parties  to  the  Action — Necessary  and  Proper — The  sub- 
ject of  parties  to  actions  is  one  of  such  wide  extent  that  we  can 

etc.,  Co.,  103  Mass.  514;  Sexton  v.  Pike,  jection  of  this  kind  should  have  been 

13  Ark.  193.     See,  also,  Parker  v.  Win-  made  on  demurrer,  or  at  least  should 

nipiseogee  Co.,  2  Black  (U.  S.),  545,  551;  have  been  specially  relied  upon  in  the 

Hipp  v.  Babin,  19  How.   (U.    S.),  271,  answer,  and  not  raised  for  the  first  time 

277.  27S.     In     Sexton   v.   Pike,    supra,  at  the   hearing   upon  pleadings  which 

it  was  said:     "The  objection  here  that  suggest    no    such  defense."     In  Cum- 

there  was  full,  adequate   and  complete  ming  v.  Mayor, supra,  Chancellor  Wal- 

remedy  at  law,  is  made  too   late,  as  it  worth   said:     "I   am  inclined  to  think 

does  not  appear  to  have  been  raised  or  the  complainants  could  have  recovered 

insisted  upon  at  any  time  in  the  court  at  law  upon  this  contract,  and  that  if 

below,  either  upon  demurrer,  in  the.  an-  that  objection  had    been  taken  at  the 

swer  or  otherwise  at  the  hearing."  The  proper  time  it  would  have  been  fatal.  It 

Supreme    Court  of   Massachusetts,  in  was  too  late,  however,  to  ask  the  court 

Creeley  v.  Bay  State,  etc.,  Co.,  supra,  to  turn   them  around   to   a   new  suit  at 

uses    this    language:     "The  objection  the  hearing,  after  the  defendants   had 

that  the  plaintiff  has  a  complete  and  ad-  suffered  them  to  go  to  the  expense  of 

equate  remedy  at  common  law,  even  if  taking  proofs  without  objection." 
well  founded,  comes  too  late.     An  ob- 


PREJUDICIAL   ERROR.  595 

not  give  it  a  very  full  discussion,  nor  is  it  to  be  expected  that 
such  a  subject  will  be  fully  discussed  in  a  work  of  this  charac- 
ter, but  it  is  nevertheless  necessary  to  give  it  some  considera- 
tion inasmuch  as  one  great  source  of  prejudicial  error  would 
otherwise  be  unnoticed.  In  what  follows  upon  the  subject  of 
parties  we  are  to  be  understood  as  referring  to  parties  in  the 
court  of  original  jurisdiction,  for  we  have  elsewhere  discussed 
the  subject  of  parties  in  the  appellate  tribunal.1  It  may  be  said 
at  the  outset  that  where  a  necessary  party  is  not  brought  into 
the  case,  and  the  question  is  properly  made,2  the  failure  to 
bring  in  such  a  party  is  generally  such  an  error  as  will  require 
a  reversal  of  the  judgment.  There  is,  however,  a  difference 
between  necessary  and  proper  parties,  and  this  difference  is  a 
radical  one  exerting  a  very  important  influence  in  procedure. 
Necessary  parties  must,  whenever  their  presence  is  approprL 
ately  requested,  be  brought  into  court,  and  when  not  in  court 
an  objection  founded  upon  their  absence  will  generally  prevail, 
but  it  is  seldom  prejudicial  error  to  refuse  to  sustain  an  objec- 
tion because  of  the  absence  of  proper  parties,  although  it  is 
sometimes  prejudicial  error  to  deny  a  request  to  make  proper 
parties.  It  is  never  error  to  join  proper  parties,  since  one  of 
the  great  objects  of  the  code  is  to  secure  a  complete  adjudica- 
tion of  all  controversies  relating  to  the  same  subject  in  one  ac- 
tion or  suit  in  all  cases  where  it  can  be  appropriately  or  prop- 
erly accomplished.3     That  necessary  parties  must  be  made,  and 

1  Ante,  Chapter  VII,  "Parties."  Masters    v.   Templeton,  92    Ind.    447; 

1  It  is  to  be  observed  that  the  objec-  Searle   v.    Whipperman,    79    Ind.    424; 

tion  that  the  necessary  parties  are  not  Hampson  v.  Fall,  64   Ind.  382;   Quill  v. 

before   the  court  must  be  made  in   the  Gallivan,  10S  Ind.  235;   Bundy  v.  Cun- 

mode  prescribed  by  law  or  it  will  be  ningham,    107   Ind.   360;    Stockwell   v. 

waived.     There  are  few,  if  any,  subjects  State,  101  Ind.  1,  and  cases  cited;    Hoes 

upon  which  the  doctrine  of  waiver  ex-  V.  Boyer,  10S  Ind.  494;    Ulrich  v.  Dris- 

erts  a  greater  influence.  chell,  88  Ind.  354,  and  authorities  cited; 

8  It  has  been  held  in  many  cases  that  Roberts    V.    Abbott,  1 27   Ind.  S3;    Horn 

the  code  adopts  the  chancery  rule,  and  V.    Indianapolis,    etc.,    Bank,    125    Ind. 

it  is  also  held  that  it  somewhat  enlarges  381,390;   Woodworth   v.   Zimmerman, 

the  rule.     The  reports  abound  incases  92  Ind.  349,  and  cases  cited;   Ballew   ;. 

upon  the  subject,  and  we  have  collected  Roller,    124    Ind.    557,    558,    and 

a  few  showing  the  various  applications  cited;   McCaffrey  v.  Corrigan,  491ml. 

that  have  been  made  of  the  doctrine.  175.     See.  generally,  upon  the  subject 

Adair   v.    Mergentheim,    114  Ind.  303;  of  settling  a   controversy  in  one  suit. 


>96 


ERROR    IN  JUDICIAL  PROCEEDINGS. 


thai  proper  parties  may  be  made,  is  a  general  rule  easily  stated, 
but  it  is  not  easily  applied  in  actual  practice.  The  difficulty  is 
in  determining  who  are  and  who  are  not  necessary  parties.  It 
may  be  said  in  a  general  way  that  if  no  judgment  or  decree  can 
be  rendered  without  the  presence  of  designated  persons  they 
are  necessary  parties  to  the  suit  or  action,1  but  that  when  some 
judgment  or  decree  can  be  rendered  complete  and  effective  as 
to  the  parties  in  court,  other  persons,  although  they  may  be 
proper  parties,2  are  not  necessary  parties  to  the  suit  or  action. 
Thus,  a  mortgagor  who  has  sold  his  equity  of  redemption  is  a 
proper  but  not  a  necessary  party  to  the  suit  to  foreclose  the 
mortgage  where  no  personal  judgment  is  sought.3 

Griffin  v.  Hodshire,  119  Ind.  235,  243;  Martin  v.  Noble,  29  Ind.  216;  Daven- 
Henderson  v.  Henderson,  3  Hare's  Ch.  port  v.  Barnett,  51  Ind.  329;  Goodall  v. 
too,  115;   Bramblett  v.  McVey  (Ky.),  15     Mopley,  45  Ind.  355;  Trayser  v.  Trus- 


S  W.  Rep.  49;  Hausmelt  v.  Patterson, 
12  1  N.Y.  349,  26  X.E.  Rep.  937;  Albere 
v.  Kingsland,  13  N.  Y.  Supp.  794; 
Weaver  V.  Van  Akin,  77  Mich.  58S,  43 
N.  W.  Rep.  10S1;  First  Nat.  Bank  v. 
Hummel,  14  Col.  259,  23  Pac.  Rep.  9S6; 
Cape  Girardeau,  etc.,  Co.r;.  Hatton,  102 


tees,  etc.,  39  Ind.  556;  McKernan  v. 
Neff,  43  Ind.  503;  Persons  v.  Alsip,  2 
Ind.  67;  West  v.  Shryer,  29  Ind.  624; 
yEtna  Life  Ins.  Co.  v.  Finch,  84  Ind. 
301;  Fitzpatrick  v.  Papa,  89  Ind.  17; 
Hagan  v.  Walker,  14  How.  (U.  S.)  29; 
Williams    v.    Banhead,    19  Wall.    563; 


M.».  45;  Myers  v.  Duabenbiss,  84Cal.  1,     Shellenbarger   v.   Biscr,    5    Neb.    195; 
23  Pac.  Rep.  1027;  Stallings  v.  Barrett,     Chambers  v.  Nicholson,  30  Ind.    349; 


26  So.  Car.  474,  2  S.  E.  Rep.  4S3;  Chris- 
tian v.  Atlantic,  etc.,  Co.,  133  U.  S.  233; 
Lieb  v.  Lichtenstein,  121  Ind.  483. 

1  Pattison  v.  Shaw,  6  Ind.  377;  Mack 
7  .  (i  rover,  12  Ind.  254;  Masters  v.  Tem- 
pleton,  92  1ml.  447,  451;  Wright  v.  Bun- 


Meredith  v.  Lackey,  14  Ind.  529;  Sum- 
ner v.  Coleman,  20  Ind.  4S6;  Wright 
v.  Field,  7  Ind.  376;  Crawford  v.  Crock- 
ett, 55  Ind.  220;  Crouse  v.  Holman,  19 
Ind.  30. 

3  Burkham   v.    Beaver,    17    Ind.  367; 


,lv.  11  Ind.  39S.  In  Bittinger  v.  Bell,  65  Petrv  v.  Ambroshcr,  100  Ind.  510,  512; 
Ind.  445,  452,  the  court  said:  "The  Shaw  v.  Hoadley,  S  Blackf.  165;  Brown 
persons  who  ought  to  be  ami  must  be  v.  Stead,  5  Simons,  535;  Swift  v.  Ed- 
made  defendants  under  the  code,  as  we  son,  5  Conn.  153;  Stevens  v.  Campbell, 
construe  it,  are  the  parties  in  interest  21  Ind.  471;  Davis  v.  Hardy,  76  Ind. 
adverse  to  the  plaintiff,  an  interest  in-  272;  W'cst  t\  Miller,  125  Ind.  70,  citing 
d  in  the  issues,  and  who  of  neces-  Bennett  v.  Mattingly,  no  Ind.  197; 
sit v  will  be  and  must  be  affected  by  the  Watts  v.  Julian,  122  Ind.  124;  Ham- 
judgment  in  the  cause.  So,  also,  any  mons  v.  Bigelow,  115  Ind.  363;  Gas- 
in,  who  is  a  necessary  party  to  a  kell  V.  Viquesney,  122  Ind.  244,  250; 
complete  determination   or    settlement  Dailey  r.  Kinsler  (Neb.),  47  N.W.  Rep. 


of  the  issues  involved,  must  by  the  let- 
•  f  the  statute  be  made  a  defendant 
to  the  action."     The  court  cited  New- 
comb  v.  Horton,  18  Wis.  566. 

'Greenup    v.   Crooks,   50   Ind.   410; 


1045;  Gruber  v.  Baker,  20  Nev.  453,  23 
Pac.  Rep.  S5S;  DeForest  --.  Thompson, 
40  Fed.  Rep.  375;  Cline  v.  Inlow,  14 
Ind.  419. 


PREJUDICIAL   ERROR. 


•V.i  7 


§  G60.    Necessary  Parties — Illustrative  Cases — In  the  preceding 

paragraph  we  roughly  outlined  the  difference  between  neces- 
sary and  proper  parties,  but  the  outline  given  is  hardly  distinct 
and  full  enough  to  answer  our  purpose  or  convey  an  adequate 
conception  of  the  subject  of  prejudicial  errors  committed  in 
rulings  respecting  parties.  To  till  out  the  outline  it  seems  nec- 
essary to  refer  to  the  decisions  somewhat  in  detail.  It  may  be 
said,  in  the  beginning,  that  the  real  party  or  parties  in  interest 
must  be  before  the  court  either  as  plaintiffs  or  as  defendants  ; 
when  parties  in  interest  will  not  join  as  plaintiffs  they  may  be 
made  defendants.1  The  general  rule  upon  the  subject  of  the 
real  party  in  interest  may  be  said  to  be  this  :  The  person  en- 
titled to  receive  the  money  or  property  recovered  in  the  action 
or  suit  is  the  real  party  in  interest.  There  are  exceptions  to 
this  general  rule,  notably  that  created  by  the  rule  that  the  trus- 
tee of  an  express  trust  may  sue  in  his  own  name.2  But  where 
the  ordinary  relation  of  principal  and  agent  exists  the  former 
is  the  real  party  in  interest  and  must  sue ;  the  agent  is  not  the 
trustee  of  an  express  trust  within  the   meaning  of  the   code.3 

1  Hill  v.  Marsh,  46  Ind.  21S;   Wall  v.  E.  Rep.  888;    Anderson  v.  Wyant,   77 

Galvin,    So    Ind.    447;     Shoemaker    v.  Iowa,  49S,  42  N.  W.  Rep.  382;     Insur- 

Board,  36  Ind.  175;  Sourse  v.  Marshall,  ance  Co.  of  North    America   v.  For- 

23  Ind.  194;  Blair  v.  Shelby  Co.  Asso-  cheimer,  86  Ala.  541,  5  So.  Rep.  S70; 

ciation,  28  Ind.  175.     As  to  who  is  to  be  First  Baptist  Church  v.  Branham,  90 

regarded  as  a  real   party  in  interest,  see  Cal.  22,    27   Pac.  Rep.  60;     Hewitt   v. 

Jamison  v.  Jarrett,  4  Ind.  1S7;     Bird  v.  Young   (Iowa),   47    N.  W.   Rep.   10S4; 

Lanius,  7    Ind.    615;     Devol  v.   Mcln-  Filley   v.   Walker,  27  Neb.  506,  44  N. 

tosh,  23  Ind.  529;  Cross. v.  Tuesdale,  28  W.  Rep.  737;    Stuckey  v.  Fritsche,  77 

Ind. 44;  David  v.  Calloway,  30  Ind.  112;  Wis.  327,  46  N.  W.  Rep.  59;  Goodsell 

Matthews    v.    Ritenour,    31     Ind.    31;  V.  Western    Union   Tel.   Co.,  9  X.    V. 

Miller  v.  Billingsly,  41   Ind.  4S9;  Pot-  Supp.  425;   Millard  v.  Togrini,  19  Nev. 

ter  v.  Smith,  36  Ind.  231,  236;    Frenzel  133,  7  Pac.  Rep.  279. 

v.  Miller,  37   Ind.  1;    Durham  v.  Hall,  2  Wolcott  v.  Standley,  62  Ind.  19S; 

67  Ind.  123;  Board  v.  Jameson,  S6   Ind.  Holmes  v.  Boyd,  90  Ind.  ^^2;     Rinker 

154;    Pixies-   v.  Nan  Nostern,   IOO  Ind.  v.  Bissell,  90  Ind.  375;    Waddle  :•.  Ilar- 

34;   Smock  v.  Brush,  62  Ind.  156;   Raw-  beck,  33  Ind.  231;   Dix  v.  Akers,  30 Ind. 

lings  v.  Fuller,  31    Ind.  255;     Peek   v.  431;     Weaver  v.  Trustee,  etc.,  28  Ind. 

Sims,    120    Ind.   345;    Morningstar  v.  112;  Musselman  v.  Cravens,  47  Ind.  1; 

Cunningham,  no  Ind.   328;     Bostwick  Landwerlen  V.   Wheeler.    106  Ind 

w.Bryant,  1 13  Ind. 448;  Lane  v.Duchac,  526;  Heavenridge  v.  Monday,  34  Ind. 

73  Wis. 646, 41  N.W.  Rep. 962;   Herron  28;  /Etna  Ins.  Co.  t>  .Baker, 71  Ind 

v.  Cole,  25  Neb.  692, 41  N.  W.  Rep.  765;  'Rawlins    v.    Fuller,    ;,i     Ind.    25;; 

Barger  v.  Hoover,  120  Ind.  193,  21   N.  Minturn  v.  Farmers,  etc.,  Co., 


598  ERROR    IN  JUDICIAL   PROCEEDINGS. 

The  rule  that  an  agent  can  not  sue  upon  a  contract  made  by 
him  in  his  representative  capacity  does  not  apply  where  he  has 
ounted  to  his  principal  for  the  claim  and  satisfied  all  de- 
mands of  the  principal  growing  out  of  the  transaction,  for  the 
reason  that  in  such  a  case  the  agent  becomes  the  equitable 
owner  of  the  claim.1  An  apparent  exception  to  the  general 
rule  that  the  action  must  be  prosecuted  in  the  name  of  the  real 
part}-  in  interest  is  found  in  the  cases  which  hold  that  a  person 
who  has  possession  of  property  under  a  contract  to  answer  to 
the  owner  for  all  injury  it  may  sustain  while  in  his  possession, 
may  maintain  an  action  against  the  wrong-doer  who  injures  it ; 
but  this  is  an  apparent  and  not  a  real  exception,  inasmuch  as 
the  custodian  of  property  in  such  a  case  is  the  person  primarily 
and  directly  injured,  and,  as  such,  he  is  truly  the  real  party  in 
interest.2  Upon  the  same  general  principle  which  requires 
that  an  action  be  prosecuted  in  the  name  of  the  real  party  in 
interest,  it  must  be  held  that  all  who  have  adverse  interests  in 
the  subject  of  the  controversy  that  may  be  injuriously  affected 
by  the  judgment,  must  be  before  the  court.  This  is  true  whether 
the  subject  of  the  controversy  is  money,  personal  property  or 
land.3  The  rule  is  that  where  a  decree  is  sought  against  land 
the  owner  of  the  land  at  the  time  the  suit  is  commenced  is  a 
necessary  party.  Thus,  the  owner  of  the  property  is  a  neces- 
sary party  to  a  suit  to  foreclose  a  mechanics'  lien,4  and  so,  also, 
is  the  owner  of  the  equity  of  redemption  a  necessary  party  to 
a  suit  to  foreclose  a  mortgage.5     So,  in  proceedings  in  parti- 

498;  Grinnel  v.  Schmidt,  2   Sandf.  (N.  3  Durham    v.    Bischof,   47    Ind.   211; 

Y.)  706.  Winslow  v.  Winslow,  52  Ind.  S. 

1  Fuller  v.  Curtis,  100  Ind.  237.  4  Holland  v.  Jones, 9  Ind.  495;  Marvin 

2  New  York,  etc.,  Co.  v.  Auer,  106  v. Taylor,  27  Ind.  73,  76,  citing  Brown  v. 
Ind.  219;  Chicago,  etc.,  Co.  v.  Linard,  Wyncoop,  2  Blackf.  230;  Shaw  v.  Hoad- 
94  Ind.  319,  S.  C.  4S  Am.  Rep.  155.  and  lev,  S  Blackf.  165;  Simonds  v.  Buford, 
authorities  cited.  The  general  princi-  iS  Ind.  176.  Bui  if  the  land  has  been 
pie  enforced  by  the  cases  referred  to  is  sold  the  vendor  is  not  a  necessary  party 
illustrated  by  the  decisions  which  de-  where  no  personal  judgment  is  sought. 
clare  that  parties  having  a  special  in-  Kellenberger  v.  Boyer,  37  Ind.  iSS. 
teresl  in  personal  property  may  main-  5  In  Daugherty  :•.  Deardorf,  107  Ind. 
tain  replevin.  Walpole  V.  Smith.  4  527,  528,  it  was  said :  "  This  decree  was 
Blackf.  304;  Bradley  v.  Michael.  1  void  as  to  the  owners  of  the  land,  for  it 
Ind.  551;  Dunkin  v.  McKee,  23  Ind.  447.  is   a   well   established   rule   that  if  the 


PREJUDICIAL  ERROR. 


tion  all  who  have  an  estate  in  the  land  sought  to  be  partitioned 
are  necessary  parties  where  the  proceedings  affect  the  entire 
property.1  But  where  the  action  for  recovery  of  land  affects 
only  the  several  and  distinct  rights  of  the  claimant,  it  is  not  al- 
ways necessary  to  make  others  parties.2  The  general  doctrine 
first  stated  applies  to  suits  to  enforce  the  specific  performance  of 
contracts  for  the  conveyance  of  land.3  One  who  has  conveyed 
land  may  be  joined  as  a  plaintiff' in  a  suit  to  enjoin  the  collection 
of  judgments  against  him  which  are  paid,  but  not  entered  satis- 
tied  of  record.4  It  has  often  been  held,  as  the  provisions  of  the 
code  require  it  should  be,  that  the  assignor  of  a  contract  or 
chose  in  action  in  cases  where  the  assignment  is  not  in  writing, 
is  a  necessary  party,  and  the  failure  or  refusal  to  so  rule  where 
the  question  is  properly  presented  is  prejudicial  error.5  A  case 
of  a  different  class  is  that  wherein  it  was  held  that  the  pledgor 


owners  of  the  mortgaged  premises  are 
not  made  parties  to  the  suit  the  decree 
is  void  as  to  them."  Day  v.  Patterson. 
iS  Ind.  114;  Pauley  v.  Cauthorn,  101 
Ind.  91;  Shirk  v.  Andrews.  92  Ind.  509; 
Mark  v.  Murphy,  76  Ind.  534;  Searle 
v.  Whipperman,  79  Ind.  424;  Griffin  v. 
Hodshire,  119  Ind.  235;  Curtis  v.  Good 
ing,  99  Ind.  45;  Abbott  v.  Union,  etc., 
Co.,  127  Ind.  70.  75. 

1  Harlan  v.  Stout.  22  Ind.  4SS;  Milli- 
gan  v.  Poole.  35  Ind.  64,  68;  Clark  v. 
Stephenson,  73  Ind.  4S9:  Taylor  v. 
King,  32  Mich.  42;  Poree's  Succession. 
27  La.  Ann.  463;  Pearson  v.  Carlton, 
iS  So.  Car.  47:  Kester  v.  Stark.  19  111. 
528;  Batterton  v.  Chiles,  12  B.  Monr. 
34S.  S.  C.  54  Am.  Dec.  539.  The  de- 
cisions referred  to  in  the  note  which 
follows  come  very  near  trenching  upon 
true  principle,  at  all  events  the  broad 
statements  made  are  of  doubtful  sound- 
ness. It  is  certainly  true  that  where 
there  are  undivided  estates  in  land  held 
as  owners  by  different  parties  all  are 
necessary  parties  to  a  suit  or  action  af- 
fecting the  whole  property. 

'-'  Nelson  v.  Davis,  35  Ind. 474;  Bethell 
v.  McCool,  4''  Ind.  303;    Chesround  v. 


Cunningham.  3  Blackf.  82.  The  gen- 
eral doctrine  stated  in  the  text  applies 
to  proceedings  to  secure  the  assignment 
of  dower.  Galbreath  v.  Gray,  20  Ind. 
290. 

3  Indiana  Pottery  Co.  v.  Bates,  14 
Ind.  S.  Purchasers  at  a  sheriff's  sale 
are  necessary  parties  to  an  action  to  set 
it  aside.  Nelson  v.  Brown,  20  Ind.  74. 
See,  generally,  Overly  v.  Tipton,  6S 
Ind.  410;  Huston  v.  Neil,  41  Ind.  504; 
Merritt  v. Wells,  iS  Ind.  171;  Meridian, 
etc..  Bank  v.  Brandt,  51  Ind.  56;  Roy 
v.  Haviland,  12  Ind.  364. 

4  McCulloch  v.  Hollingsworth.  27 
Ind.  115. 

5  Gordon  v.  Carter.  79  Ind.  3S6;  Sco- 
bey  v.  Finton,  39  Ind.  275;  Reed  v. 
Garr,  59  Ind.  299;  Reed  v.  Finton.  63 
Ind.  28S;  Holdridge  v.  Sweet,  23  Ind. 
11S;  Bray  v.  Black,  57  Ind.  417:  Hub- 
bell  v.  Skiles,  16  Ind.  138;  Elderkin  v. 
Shultz,  2  Blackf.  345;  Strong  v.  Down- 
ing. 34  Ind.  300:  Keller  V.  Willian 
Ind.  504:  Barcus  v.  Evans,  14  Ind. 381. 
See,  generally.  Tread  way  V.  Cobb.  18 
Ind.  36;  Connard  v.  Christie.  16  Ind. 
427:    Riley  :\  Schawacker.  50  Inc. 


600  ERROR   IN  JUDICIAL   PROCEEDINGS. 

of  shares  of  the  capital  stock  of  a  corporation  was  a  necessary 
party  to  an  action  against  the  corporation  to  compel  a  transfer 
of  the  stock.1 


§  661.   A  Criterion  for  Determining  who  are  Necessary  Parties — 

The  case  last  referred  to  suggests  one  test,  at  least,  for  deter- 
mining whether  parties  are  necessary  or  simply  proper,  in  this, 
that  it  clearly  indicates  that  a  defendant  has  a  right  to  have 
brought  before  the  court  all  persons  whose  presence  is  required 
to  fully  settle  or  determine  the  particular  controversy  or  whose 
presence  is  required  in  order  to  enable  the  court  to  render  such 
a  judgment  or  decree  as  shall  fully  protect  his  rights.  Where 
a  controversy  can  not  be  finally  adjudicated  without  the  pres- 
ence of  all  interested  the  defendant  has  a  right,  upon  proper 
motion  or  request,  to  insist  that  they  be  brought  into  the  case 
for  the  reason  that  their  presence  is  essential  to  prevent  him 
from  being  vexed  by  suits  or  actions  concerning  the  same 
subject.  Where  the  controversy  concerns  property  he  has  a 
right  to  have  all  the  parties  before  the  court  for  the  reason  that 
it  is  just  that  his  interest  or  estate,  if  any  he  has,  should  be 
finally  adjudicated  as  against  all  claimants,  or  if  he  has  no  in- 
terest that  he  should  be  protected  against  further  litigation.  In 
cases  where  a  defendant  is  liable  with  others,  it  is  his  right  to 
have  them  brought  into  court,  so  that  if  he  subsequently  seeks 
to  compel  contribution  he  may  do  so  without  again  litigating 
the  question  of  the  joint  liability  of  all  to  the  creditor  who  sues. 
It  will  be  found  upon  an  analysis  of  the  cases  which  proceed 
on  solid  principle  that  the  test  we  have  suggested  is  one  of 
practical  importance  and  utility.  The  doctrine  we  have  out- 
lined is  asserted  and  enforced  in  many  of  the  decided  cases, 
and  in  a  great  variety  of  forms  and  phases.  It  would  occupy 
much  more  space  than  we  can  give  the  topic  to  consider  the 


1  Indiana  and  Illinois  Central  Ry.  Co.  terest  in  the  subject-matter  of  the  liti- 

v,  McKernan,  24  Ind.  62.     In  the  case  gation,  and  was  a  necessary  party  for 

cited  it  was  said,  in  speaking  of  the  ne-  complete  relief.     The  railroad  company 

cessity  of  making  the  pledgor  a  party:  had  a  right  to   insist  upon    his  being 

"  Under  the  facts  in  this  case,   Drake  made  a  party  for  the  protection  of  its 

was  a  necessary  party;  he  had  an   in-  rights.'' 


PREJl'  DICIAL  ERROR. 


601 


cases  in  detail  or  even  to  cite  them  all,  so  that  all  that  we  can 
do  is  to  refer  to  some  of  the  many  cases  upon  the  subject.1 


1  Cases  in  which  it  was  held  that 
parties  were  necessary.  Murphy  v. 
Tilly,  ii  Ind.  511;  Luark  v.  Malone, 
34  Ind.  444;  Duck  v.  Abbott,  24  End. 
349;  Mandlove  v.  Lewis,  9  Ind.  194; 
Hardy  v.  Blazer,  29  Ind.  226;  Elliott 
v.  Stevenson,  21  Ind.  359;  McCammack 
v.  Clark,  16  Ind.  320;  Reed  v.  Finton, 
63  Ind.  28S;  Clough  v. Thomas,  53  Ind. 
24;  Brady  V.  Black,  57  Ind.  417;  Har- 
vey v.  Brishbin,  50  Hun.  376;  Howell 
r.  Foster,  25  111.  App.  42;  Traphagen  v. 
Levy,45  N.J.  Eq.  448,  iS  At.  Rep.222; 
Prentiss  v.  Paisley,  25  Fla.  927,  7  So. 
Rep.  56;  Tichenor  v.  Tichenor,  45  N. 
J.  Eq.  664,  iS  Atl.  Rep.  301;  Moore  v. 
Gentry,  25  So.  Car.  334;  McMekin  v. 
Richards,  Si  Ga.  192,  6  S.  E.  Rep.  185; 
Hill  v.  Lewis,  45  Kan.  162,  25  Pac.  Rep. 
589;  Tarkington  v.  Link,  27  Neb.  826, 
44  N.  W.  Rep.  35;  Masterson  v.  Little, 
75  Texas,  6S2,  13  S.W.  Rep.  154;  Atchi- 
son, etc.,  Co.  v.  Benton,  42  Kan.  698,  22 
Pac.  Rep.  69S;  Wood  v.  Wheeler,  106 
N.  C.  512,  11  S.  E.  Rep.  590.  As  illus- 
trative of  peculiar  phases  of  the  ques- 
tion we  cite  the  following  cases:  A 
judgment  debtor  is  a  necessary  party  to 
a  suit  by  a  receiver  to  reach  his  equita- 
ble interest  in  a  fund.  Vanderpoel  v. 
Van  Valkenburgh,  6  N.  Y.  190.  So  is  a 
judgment  debtor  in  a  suit  by  an  attor- 
ney to  enforce  a  lien  against  the  judg- 
ment for  professional  service:-.  Adams 
v.  Fox,  40  N.  Y.  577.  It  has  been  held 
that  the  assignor  is  a  necessary  party  to 
a  suit  to  avoid  the  assignment.  Wilson 
v.  Scott,  3  Lans.  30S;  Hammond  v. 
Hudson  River,  etc.,  Co.  v.  20  Barb.  37S. 
Where  a  creditor  has  assigned  collat- 
eral securities  to  a  third  person,  the 
former  is  a  necessary  party  to  a  suit  by 
the  debtor  for  an  accounting.  Lewis  v. 
Varnum,  12  Abbott  Pr.  305.  Creditors, 
it  has  been  held,  are  necessary  parties 
to  a  suit  againsl  a  debtor  who  has  trans- 


ferred a  mortgage  which  the  holder 
seeks  to  enforce,  although  the  debtor 
has  made  an  assignment.  Bard  v. 
Poole,  12  N.  Y.  495.  As  to  who  are 
necessary  parties  in  actions  against 
corporations  by  stockholders,  see  Dis- 
more  v.  Atlantic,  etc.,  Co.,  46  How.  Pr. 
193;  Greaves  v.  George,  49  How.  Pr.  R. 
79;  Greaves  v.  George,  ^2  How.  Pr.  58, 
S.  C.  16  Abb.  Pr.  R.  (N.  S.),  377,  S.  C. 
69  N.  Y.  154;  Hand  v.  Atlantic,  etc., 
Hank,  55  How.  Pr.  231;  Davis  v.  Trus- 
tees, etc.,  65  N.  Y.  278.  Several  cred- 
itors who  have  been  induced  to  execute 
a  release  are  necessary  parties  in  a  suit 
to  annul  it.  Smith  v.  Schuting,  14  Hun. 
52.  As  to  the  interest  which  makes  a 
party  necessary.  Vallette  v.  Whitewater. 
etc.,  Co.,  .)  McLean,  192.  In  a  suit  to 
set  aside  a  fraudulent  conveyance  the 
grantor  is  a  necessary  party.  Gaylords 
v.  Kilshaw,  1  Wall. Si,  see  Vose  v.  Phill- 
brook,  3  Story,  C.  C.  335.  Cases  adjudg- 
ing parties  not  necessary.  Ridenour  v. 
Wherritt,  30  Ind.  4S5;  Scobey  v.  Fin- 
ton,  39  Ind.  275;  Cassaday  v.  Detrich, 
63  Ind.  4S5;  Henson  v.  Ott,  7  Ind.  512; 
Way  v.  Fravel,  61  Ind.  162;  Frear  v. 
Bryan,  12  Ind.  343;  Kaukauna,  etc.,  Go. 
v.  Green  Bay,  etc.,  Co.,  75  Wis.  3S5,  44 
N.W.  Rep.  63S;  Hart  v.  Burch,  130  111. 
426,  6  Law.  Rep.  Anno.  371;  Friteh  v. 
Klausing(Ky.),  13  S.W.  Rep.  241;  Peo- 
ple V.  Mayor,  etc.,  32  Barb.  35;  Thomp- 
son v.  Erie,  etc.,  Co..  45  NY.  468;  Coe 
v.  Beckwith,  31  Barb.  339;  Spicer  :  . 
Hunter,  14  Abb.  Pr.  4;  Van  Nest  v. 
Latson,  19  Barb.  604;  St.  Mark,  etc., 
Co.  v.  Harris,  13  How.  Pr.  95;  Patter- 
son v.  Copeland,  52  How.  Pr.460;  V en- 
able v.  Bank.  2  Pet.  107;  Van  Reims- 
dyk  V.  Kane.  1  Gall.  371.  630;  Heath  v. 
Erie,  etc.,  Co.,  8  Blatch.  347:  Railroad 
Co.  v  Howard.  7  Wall.  392;  French  v. 
Shoemaker,  14  Wall.  314;  Carey  v. 
Brown.  92  U.  S.  171. 


602  ERROR  IN  JUDICIAL  PROCEEDINGS. 

§  662.  Who  should  be  Plaintiffs  and  who  Defendants — General 
Rule — A  person  whose  legal  rights  have  been  invaded  is  ordi- 
narily the  proper  party  to  institute  an  action,  but  it  others  are 
united  with  him  in  a  joint  interest  they  must  join  with  him,  or 
if  they  will  not  join,  then,  under  the  code,  they  may,  as  we 
have  seen,  be  brought  into  court  as  defendants.  Joint  parties 
must  be  plaintiffs  for  the  reason,  as  the  old  cases  assign  l  that 
the  defendant  did  not  contract  with  one  ol  them  but  with  all, 
and  he  can  not  be  made  to  answer  to  a  number  less  than  the 
whole  except  in  some  particular  cases  which  form  exceptions 
to  the  general  rule.  Under  the  code  system  a  right  may  be  in- 
vaded by  a  wrongful  claim  or  assertion,  as  well  as  by  a  positive 
wrongful  act.  A  claim  may  constitute  an  actionable  wrong, 
as,  for  instance,  a  claim  of  ownership  founded  upon  a  void  ju- 
dicial or  official  sale.  We  may,  therefore,  assert  as  a  general 
rule  that  one  whose  rights  are  invaded  bv  a  tortious  act  or  a 
wrongful  claim  which  may  do  him  harm  is  the  necessary  and 
proper  plaintiff  in  a  suit  or  action  to  vindicate  the  right  or  re- 
dress the  wrong.  Thus,  the  owner  of  land  is  ordinarilv  the 
proper  plaintiff  in  an  action  to  recover  damages  to  the  land 
caused  by  the  wrong.  So,  in  a  suit  to  quiet  title  the  owner  is 
the  proper  plaintiff,  since  he  has  a  right  to  have  his  land  freed 
from  unfounded  claims.  The  person,  it  may  be  said  generally, 
who  wrongfully  invades  the  plaintiff 's  rights,  is  the  party  against 
whom  the  suit  or  action  should  be  brought.  It  is  in  general  true 
that  any  person  who  violates  the  right  of  another  may  be  sued, 
whether  the  right  be  one  of  person  or  of  propertv.  If  it  be 
true  that  one  person  has  infringed  the  rights  of  another  the 
wrong-doer  is  liable  for  the  injurv  inflicted,  whether  the  injury 
results  from  a  breach  of  contract  or  from  a  tort.  Ordinarily,  the 
answer  to  the  question,  who  violated  the  plaintiff's  rights  de- 
termines who  should  be  parties  defendant.  But  in  cases  of  torts 
or  of  several  contracts  the  injured  party,  as  is  well  known,  is 
not  bound  to  sue  all  of  the  wrong-doers. 

1  Wetherill  v.  Langston,  i  Exch.644;  Dorermis    z>.    Selden,    19  Johns.    213; 

Cabell    v.   Vaughan,    1  Wm.  Saunders,  Moodj   v.  Sewall,   i.)  Me.  295;   Hansel 

291  /.  29]   k;  Lucas  v.  Beale,   10  C.  B.  v.  Morris,  1  Blackf.  307;  Ellis   v.   Mc- 

739;    Baker   v.  Jewell,    6    Mass.    460;  Lemoor,  1  Baity  L.  (So.  Car.).  13. 


PREJUDICIAL   ERROR.  603 

§  663.  Joinder  of  Parties — Prejudicial  error  may  arise  oul 
rulings  respecting  the  joinder  of  parties,  although  there  is  much 
less  liability  that  error  will  occur  under  the  code  system  than 
under  the  common  law.  The  common  law  rules  are,  however, 
not  abrogated  for  they  still  prevail  to  some  extent,1  although  in 
some  instances  changed  by  the  code,  and  in  others  abrogated. 
It  is  in  general  true  that  all  who  are  jointly  liable  to  the  plaint- 
iff must,  as  at  common  law,  be  made  defendants  to  the  action, 
but,  as  shown  by  the  cases  cited  in  the  note,  the  common  law 
rule  is  somewhat  modified.  The  consequence  of  an  error  in 
joining  persons  as  defendants  who  ought  not  to  be  joined  is 
much  changed  by  the  code,  inasmuch  as  it  provides  for  judg- 
ment in  favor  of  the  plaintiff  as  to  those  against  whom  he  shows 
a  right  to  a  judgment,2  although  as  to  others  he  may  fail.  It 
is  always  proper,  and  generally  necessary,  to  make  defendants 
all  persons  who  have  jointly  invaded  the  rights  of  the  plaintiff 
to  his  injury,  or  whose  presence  is  required  in  order  to  enable 
the  court  to  pronounce  a  judgment  or  decree  that  will  finallv 
and  effectively  settle  the  particular  controversy.3  Where  there 
is  a  joint  right  to  a  money  recovery  or  to  the  recovery  of  per- 

1  Erwin  v.  Scotten,  40  Ind.  3S9;  Ar-  306;  Stafford  v.  Nutt,  51  Ind.  535:  Scot' 
cher  v.  Heitnan,  21  Ind.  29;  Stockton  ton  v.  Mann.  89  Ind.  404;  Blodgett  v. 
v.  Stockton,  40  Ind.  225;  State  v.  Rob-  Morris,  14  N.Y.  4S2;  O'Shea  v.  Kirker, 
erts,  40  Ind.  451;  Rose  v.  Comstock,  S  Abb.  Pr.  69. 

17  Ind.  1;  Lawrence  v.  Beecher,  116  s  Luark  v.  Malone,  34  Ind.  444;  Mer- 
Ind.  312,  314;  Holman  v.  Langtree,  40  ritt  v.  Wells.  iS  Ind.  171;  Scobey  v. 
Ind.  349.  See,  generally,  Taylor  v.  Finton,  39  Ind.  275:  Mack  v.  Grover, 
Claypool,  5  Blackf.  557;  Nicklaus  v.  12  Ind.  254;  Wrigb.1  v.  Field,  7  Ind. 
Roach,  3  Ind.  7S;  Lingenfelser  v.  Si-  376;  Bragg  v.  Wetzel,  5  Blackf.  95; 
mon,  49  Ind.  S2;  Kennard  v  Carter,  64  Wilson  -■.  State,  6  Blackf.  212;  R< 
Ind.  31;  Robinson  v.  Snyder,  74  Ind.  Comstock,  17  Ind.  1 ;  Stockton  v.  Stock- 
no.  ton,  40  Ind.  225;   Erwin   v.  Scotten.  40 

2  R.  S.  1881,  §§  366,  568;  Hubbell  V.  Ind.  3S9;  Hall  v.  Suitt,  39  Ind. 
Woolf,  15  Ind.  204;  Fitzgerald  v.Genter,  Stater'.  Roberts,  40  Ind.  451;  Norvell 
26 Ind. 238;  Stafford*. Nutt, 51  Ind. 535;  v.  llittle.  23  Ind.  346;  Boorum  v.  Ray, 
Oarmien  f.Whitaker,  36  Ind.  509;  Gra-  72  Ind.  151;  Gilbert  v.  Allen,  57  Ind. 
ham  v.  Henderson,  35  Ind.  195;  Ter-  524;  MeCollum  v.  Uhl,  12S  Ind 
williger  v.  Murphy,  104  Ind.  32;  Rich-  Bledsoe  v.  Irvin,  35  Ind.  293.  As  a 
ardson  v.  Jones,  ;s  [nd.240;  Wilson  v.  general  rule  a  plaintiff  need  onlv  look 
Buell,  117  Ind.  315;  Lower  v.  Franks,  to  the  records  to  ascertain  who  has  or 
115  Ind.  334;  Murray  z\  Ebright,  50  who  claims  to  have  an  interest  in  land. 
Ind.  362;   Mover  z>. Brand,  102  Ind.  301,  Bell  v.  Cox.  122  Ind.  153. 


604 


ERROR   IN   Jl   DICIAL   PROCEEDINGS. 


sonal  or  real  property  the  general  rule  is  that  all  in  whom  the 
joint  estate,  right,  or  interest  exists  should  unite  as  plaintiff's.1 
Persons  not  jointly  interested  should  not  be  joined  as  plaintiffs.2 
Persons  having  a  right  to  a  common  relief  may  in  some  in- 
Stances  join  as  plaintiffs.3 

.^  664.   Right  of  Action  must  exist  in  all  who  join  in  a  Complaint 

—  It  has  long  been  the  established  rule  in  this  jurisdiction  that 
a  complaint  must  state  facts  showing  a  cause  of  action  in  all 
who  unite  in  it  as  plaintiffs.  If  it  does  not  show  a  cause  of  ac- 
tion in  all  wrho  join  in  it  a  demurrer  assigning  as  a  cause,  "  that 
the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action  "  will  prevail  against  it.4  The  theory  seems  to  be  that 
there  is  no  cause  of  action,  not  that  there  is  a  defect  of  parties. 

§  665.  Pleadings,  Motions  to  make  Specific — Under  our  system 
the  usual  remedy  for  an  uncertainty  in  a  pleading  is  by  motion 
to  make  more  certain  or  specific  and  not  by  demurrer, 5  so  that 


1  McArthur  v.  Lane,  15  Me.  245; 
Smoot  v.  Wathen,  S  Mo.  522;  Jellison 
v.  Lafonta,  19  Pick.  244;  Clark  v. 
Vaughan,  3  Conn.  191;  Gent  v.  Lynch, 
23  Md.  58;  Sayre  v.  Sayre,  17  N.J.  Eq. 
349;  Braintree  v.  Southworth,  |  Gray, 
304;  Russell  v.  Clark,  7  Cranch.  69; 
Prentice  v.  Kimball,  19  111.  319;  Man- 
deville  v.  Riggs,  2  Pet.  482;  Northern 
Indiana,  etc.,  Co.  v.  Michigan  Central, 
etc.,  Co.,  5  McLean,  444;  Wilson  v. 
Castro,  31  Cal.  420;  Brasher  v.  Van 
Cortland,  2  John.  Ch.  242;  Parkt'.Bal- 
entine,  6  Blackf.  223;  Fletcher  v.  Man- 
sur,  5  Ind.  267;  Gilbert  v.  Allen,  57 
I  ml.  524;  Tate  v.  Ohio,  etc.,  Co.,  10  Ind. 
174;  Roberts  v.  Abbott,  127  Ind.  S3; 
Renihan  v.  Wright,  125  Ind.  536. 

2  Jones  v.  Caidwell,  98  Ind.  331. 

3  field  11.  Holzman,  93  Ind.  205; 
Town  of  Sullivan  v.  Phillips,  no  Ind. 

1  Sims  v.  Hurst,  44  I  ml.  571;;  Maple  v. 
Beach,  43  Ind.  51;  Neal  v.  State,  49 
Ind.  51;  Berkshire  v,  Shultz,  25  Ind. 
523;  Goodnight   v.   Goar.  30   Ind.  41S; 


Debolt  v.  Carter,  31  Ind.  355;  Fatman 
v.  Leet,  41  Ind.  133;  Yaterf.  State,  58 
Ind.  299;  Parker  v.  Small,  58  Ind.  349; 
Lipperd  V,  Edwards,  39  Ind.  165; 
Strange  V.  Lowe,  S  Blackf.  243;  Gritlin 
v.  Kemp,  46  Ind.  172;  Nave  v.  Hadley, 
74  Ind.  i55;Peters  v.  Guthrie,  119  Ind. 
44;  Traders  Ins.  Co.  v.  Newman,  120 
Ind.  554,  $z,(>;  Kelley  v.  Adams,  120 
Ind.  340,  342;  Evans  v.  Schafer,  119 
Ind.  49;  Brumfield  v.  Drook,  101  Ind. 
190;  Brown  v.  Critchell,  no  Ind.  31; 
Mann  v.  Marsh,  35  Barb.  68;  Dunder- 
dale  v,  Grvnus.  [6 How.  Pr.  195.  See, 
generally,  Ritchmyer  t>.  Ritchmyer,  50 
Barb.  55;  Palmer  v.  Davis,  2S  N.  Y. 
242;  Simar  v.  Canaday,  53  N.  Y.  29S, 
301.  As  to  the  common  law  doctrine, 
see  Staler  v.  Barhite,  2  Caines,  221; 
Lewis  v.  Babcock,  18  Johns.  443;  Lil- 
lard  v.  Ruckers,  9  Yerg.  64. 

5  Among  the  great  number  of  cases 
asserting  this  doctrine  are:  Fultz  v. 
Wycoff,  25  Ind.  321;  Cleveland,  etc., 
Co.  v.  Wynant,  119  Ind.  539;  Pennsyl- 
vania Co.  t'.  Dean,  92   Ind.  459;  Fallej' 


PREJ1    DIC  I  A  I.   ERROR.  605 

if  a  party  appropriately  moves  to  make  a  pleading  definite  and 
certain  it  will  be  prejudicial  error  to  overrule  his  motion  if  it  is 
well  founded,  and  the  defect  pointed  out  is  a  material  one.'  It 
is  evident  that  ii  is  not  every  instance  where  a  wrong  ruling 
upon  a  motion  to  make  more  specific  is  made  that  prejudicial 
error  arises,  inasmuch  as  there  may  be  cases  where  it  would 
be  proper  to  sustain  the  motion  and  yet  no  substantial  injury 
arise  from  overruling  it.2  But,  as  a  party  is  entitled  to  reason- 
ably full  and  clear  information  of  what  is  alleged  against  him, 
and  as  isues  must  be  definite  and  certain,  there  are  mamr  in- 
stances where  certainty  and  precision  are  material,  and  in  all 
such  instances  it  would  be  harmful  error  to  overrule  a  motion 
to  make  more  specific  addressed  to  a  complaint  materially  de- 
fective in  certainty. 

£  666.  Rulings  on  Demurrer — Where  a  demurrer  is  overruled 
to  a  bad  paragraph  of  a  complaint  consisting  of  several  para- 
graphs, there  is  prejudicial  error  unless  the  record  affirmatively 
shows  that  the  judgment  rests  on  a  good  paragraph  or  para- 
graphs. If  the  record  proper  clearly  shows  that  the  judgment 
rests  on  the  good  paragraph  or  paragraphs  there  is  no  available 
error,  since  the  court  can  see  from  an  inspection  of  the  record 
that  no  harm  was  done  the  complaining  party.  But  it  is  other- 
wise where  there  is  no  such  affirmative  showing,  and  the  pre- 
sumption that  the  error  was  prejudicial  will  be  given  full  effect.3 

v.  Gribling,  128  Ind.  no;  Jones  v-  State,  2  Alleman  v.  Wheeler,  101  Ind.  141. 
112  Ind.  193.  "It  is  only  where  the  In  the  case  cited  it  was  said:  "It  is 
pleading  is  so  indefinite  and  uncertain  quite  evident  that  the  facts  relied  on 
as  to  entirely  fail  to  state  a  cause  of  for  a  recovery  in  this  action  were  not 
action  that  a  demurrer  will  lie."  Will-  as  directly  and  certainly  charged  as  the 
iams  v.  Board,  121  Ind.  239,  240;  Snow-  rules  of  good  pleading  required,  and 
den  v.  Wilas,  19  Ind.  10;  Lewis  v.  Ed-  that  the  complaint  might,with  great  pro- 
wards,  44  Ind.  333.  priety,  have  been  ordered  to  be  made 
1  Goodwin  <o.  Walls,  52  Ind.  268;  more  specific."  It  was,  however,  held 
Starkweather  ?\  Kittle,  17  Wend,  thai  there  was  no  available  error  in 
20;  Hurtling  t».  Griffin,  7  Blackf.  462.  overruling  the  motion,  but  it  is  ques- 
The  ruling  in  Louisville,  etc.,  Co.  v.  tionable  whether  the  decision  i>  de- 
Henly,  SS  Ind.  535,  is  so  obscure  that  fensible.  If  a  party  can  not  secure  cer- 
it  is  difficult  to  determine  it>  effect.  If  tainty  by  a  motion  he  is  remediK 
it  means  that  amotion  to  make  more  5  Wolf  v.  Schofield,  38  Ind.  175;  Peer) 
specific  is  not  an  appropriate  one  it  is  v.  Greensburgh,  etc..  Co..  43  Ind.  321; 
clearly  wrong.  Cook  v.  Hopkins,  66  Ind.  208;    Evans- 


G06  ERROR   IN  JUDICIAL  PROCEEDINGS. 

It  is  by  no  means  ever}  erroneous  ruling  upon  the  pleadings 
that  may  be  rendered  harmless  by  other  rulings  of  the  court. 
If,  for  instance,  a  demurrer  is  erroneously  sustained  to  an  an- 
swer, the  defendant  ma}'  be  precluded  from  availing  himself  of 
a  valid  defense,  and  it  is  obvious  that  where  this  is  so  the  error 
is  not  rendered  harmless  by  a  special  finding  or  a  special  ver- 
dict.1 

.^  <><;7.  A  Wrong  Ruling  which  operates  to  Exclude  Material  Facts 
is  Prejudicial — It  is  sometimes  said  that  if  the  facts  as  they  ap- 
pear in  the  record  repel  the  inference  of  prejudice  from  an  ad- 
verse ruling,  the  ruling,  although  wrong,  can  not  be  made 
available  for  the  reversal  of  the  judgment.  This  statement  is 
misleading  and  requires  qualification.  It  is  true,  as  said  in  the 
opening  paragraph  of  this  chapter,  that  the  court  will  examine 
the  entire  record  to  ascertain  whether  the  error  was  or  was  not 
prejudicial,  but  this  does  not  imply  that  the  court  will  adjudge 
the  error  harmless  solely  upon  the  facts  appearing  in  the  rec- 
ord ;  on  the  contrary,  the  court  will  inquire  and  ascertain 
whether  the  complaining  party  has  been  precluded  from  giving 
material  and  influential  evidence  that  he  was  entitled  to  have 
considered,  and  if  it  finds  that  the  effect  of  a  wrong  ruling  was 
to  deprive  him  of  the  right  to  give  such  evidence  it  will  adjudge 
the  error  to  be  prejudicial.     There  are  many  cases  where  a 

vilK-.  etc.,  Co.  v.  Wildman,  63  Ind.370;  available  by  a  defendant  who  had  not 

Schaferv.  State,  49  Ind.  460;  Hawley  v.  joined    in   it.     The  court   said:     "We 

Smith,  4^  Ind.  1S3;    Bailey  v.  Troxell,  can  not  look  to  this  special   finding  of 

43lnd.432;  PennsylvaniaCo.  v.  Holder-  facts  to  pronounce  the  error  harmless, 

man,  (»)  Ind.  18;     Ethell  v.  Batchelder,  on  the  ground  that   the  case  has  been 

90  End.  520;  Lang  v .Oppenheim, 96  Ind.  disposed  of  upon  its  merits.     If  the  an- 

47;   City  of  Logansport  v.  La  Rose,  99  swer  had   been    allowed   to    stand,   the 

Ind.  117;  Rowe  v.  Peabody,  102  Ind.  19S;  evidence  might  have  been  different,  and 

Walker  v.  Heller,  104  Ind. 327;   Weir©,  hence   the  special  finding  might   have 

State,  96  Ind.  311;   Belt  Railroad,  etc.,  been  different.     Nor  can  we   say  from 

Co.ti.  Mann,  107  Ind.  89;   Ryan  v.  Ilur-  an  inspection  of  the  paragraph   or  an- 

ley,  in;  Ind.  u^.  swer,  and  the  record  before  us  that  the 

1  In  M nver  v.  Brand,  102  Ind.  301,  an  error  should  be  disregarded  because  the 

answer  was  filed  by  one  of  several  de-  answer  embodied  a  sham  defense.  There 

fendants  which  w;i>  available  to  all,  and  is  nothing  upon  the  face  of  either  which 

the  court  held  that  the  error  in  sustain-  would  justify  such  a  conclusion." 
ing  a   demurrer   to   it   might    he    made 


PREJUDICIAL    ERROR.  G»'7 

ruling  is  prejudicial  because  it  operates  to  exclude  facts,  and  it 
is,  of  course,  perfectly  clear  that  in  such  a  case,  the  facts  actu- 
ally in  the  record  can  not  be  held  to  show  the  error  to  be  with- 
out prejudice.1 

§  668.   Error  once  Effectively  Saved  npon  Demurrer  is  Sufficient 

— Where  an  adverse  ruling  upon  a  demurrer  so  operates  as  to 
wrongfully  deprive  a  party  of  the  right  to  introduce  evidence 
establishing  a  cause  of  action  or  a  defense,  a  proper  exception 
duly  entered  is  sufficient  to  fully  present  the  ruling  for  review 
on  appeal.     No  further  decision  or  ruling  need  be  requested  in 
any  form.     As  we  have  elsewhere  shown,  the  presumption  is 
that  the  court  adheres  to  the  theory  declared,  either  expressly 
or  impliedly,  in  its  rulings  upon  the  pleadings.2     A  party  who 
presents  a  question   fully  and  fairly  upon  the  pleadings  has  a 
right  to  presume  that  the  trial  court  will  abide  by  the  decision 
throughout  the  case,  and  hence  is  not  bound  to  again  present 
the   question.     Thus,  if  a  party  should   plead   that  there   was 
fraud  in  obtaining  a  contract  and  the  court  should  sustain  a  de- 
murrer to  his  answer,  he  is  under  no  duty  to  offer  evidence  un- 
der the  overthrown  answer  in  order  to  make  the  error  available. 
Courts    have,    in    more    instances   than   one,    censured    coun- 
sel   for    repeated    attempts  to    present   a   question    once  fully 
and   effectively  disposed   of  by  the   ruling  or  decision  of  the 
court.     It  is  obvious  that  it  would  completely  nullify  the  ele- 
mentary rule  that  the  evidence  must  be  confined  to  the  issues 
to  hold  that  in  order  to  make  the  error  available  a  party  must 
offer  evidence  in  support  of  the  cause  of  action  or  defense  as- 
serted in  the  complaint  or  answer  held  bad  upon  demurrer, 
since,  without  some  pleading  tendering  the   proper  issue   he 
could  not  give  any  such  evidence.     The  court  in   ruling  the 
pleading  insufficient  declares  that  it  is  useless  and  vain  to  offer 
such  evidence,  and  in  the  face  of  such  a  declaration  the  party 
is  not  bound  to  offer  evidence,  for  he  can  not  be   required  or 
expected  to  do  a  vain   and   fruitless  thing.     lie  has,  in  strict- 
ness, no  right  to  do  so,  in  view  of  the   decision  of  the   court 

1  Mover  ?.  Brand,  suj>ra.  court  adheres  to  a  declared  or  indicated 

*  Ante,  §591.    "Presumption  that  the     theory." 


608 


ERROR   IX  JUDICIAL  PROCEEDINGS. 


which  it  his  duty  to  respect.  It  is  quite  clear  that  the  expres- 
sions in  some  of  the  cases  are  erroneous,  and  that  the  decisions 
which  assert  that  regard  will  be  had  only  to  the  pleadings 
where  the  effect  of  the  ruling  is  to  cut  off  a  substantial  right 
are  correct.1 


^  (569.   The  Difference  between  Overruling  a  Demurrer  and  Sus- 
taining a  Demurrer  to  one  of  Several  paragraphs  of  a  Pleading — 

Ccnrusion  frequently  results  from  applying  the  settled  rule,  that 
a  ruling  sustaining  a  demurrer  to  one  of  several  paragraphs  of  a 
pleading  is  h  :rmless  in  a  case  where  there  are  other  paragraphs 
of  a  pleading  under  which  all  of  the  facts  can  be  proved,  to  a  case 
where  a  demurrer  is  overruled  to  one  of  several  paragraphs.2 
The  cases  are  radically  different.  It  can  not  possibly  do  the 
party  whose  demurrer  is  overruled  any  good  to  hold  that  there 
are  other  paragraphs  under  which  all  the  evidence  is  admissi- 
ble, although  it  may  do  his  adversary  a  vast  deal  of  good  to  so 
hold.     It  is  no  benefit  to  the  party  who  demurs  that  his  adver- 


1  Johnson  v.  Breedlove,  72  Ind.  36S; 
Friddle  v.  Crane,  68  Ind.  583;  Fleet- 
wood v.  Brown,  109  Ind.  567,  570;  Wil- 
son v.  Town  of  Monticello,  85  Ind.  10, 
21;  Rush  ©.Thompson,  112  Ind.  158, 
if>y.  Mover  v.  Brand.  102  Ind.  301; 
Ryan  v.  Hurley,  1  [9  Ind.  115.  In  Rout 
v.  King,  103  Ind.  555,  it  was  said: 
"  The  court  can  not  examine  the  evi- 
dence to  determine  a  question  presented 
by  demurrer,  for  the  demurrer  presents 
the  question  fully  and  the  question  pre- 
sented must  he  deeideil  according  to  the 
record."  In  Ahell  v.  Riddle,  75  Ind. 
345,  348,  the  court  said:  "The  excep- 
tion having  been  saved  to  the  ruling  on 
the  demurrer,  the  pleading  can  not  In- 
aided  by  reference  to  the  verdict  or  the 
evidence."  In  the  case  of  New  v. 
Walker.  10S  Ind.  365,  376.  it  was  said: 
'•  It  can  not  he  legally  possible  that  if  a 
party's  reply,  presenting  facts  which 
completely  avoid  and  nullify  the  answer 
of  his  adversary,  is  held  to  be  insuffi- 
cient, the  special  finding  can   cure  the 


error.  If  his  pleading  is  overthrown, 
In  is  not  entitled  to  give  evidence  in 
support  of  the  theory  which  it  asserts, 
and  he  is,  therefore,  necessarily  and 
materially  injured  by  the  ruling  strik- 
ing it  down.  Where  a  party  duly  ex- 
cepts to  a  ruling  on  demurrer  which 
overthrows  a  valid  pleading,  he  does 
not  wane  any  rights  by  proceeding  to 
trial,  nor  is  he  hound  to  oiler  evidence 
upon  the  subject  covered  by  the  plead- 
ing, for  his  exception  to  the  ruling  on 
the  demurrer  effectually  asserts  and 
preserves  his  rights." 

2  The  courts  have  fallen  into  the  er- 
ror in  several  instances,  as  the  over- 
ruled cases  show.  McGee  v.  Robbins, 
58  Ind.  463;  Johnson  v.  D'lleur,  71 
Ind.  199;  Thomas  v.  Hamilton,  71  Ind. 
277;  Webster  v.  Bebinger,  70  Ind.  9; 
De  Armond  v.  Stoneman,  63  Ind.  386. 
These  cases  are  expressly  denied  in 
Over  V.  Shannon,  75  Ind.  352,  and  are 
in  conflict  with  many  other  cases. 


PREJUDICIAL  ERROR. 


609 


sary  may  give  evidence  under  other  paragraphs,  although  to 
the  adversary  the  benefit  may  be  very  great.  In  holding  a  de- 
fective paragraph  good  the  court  adjudges  that  if  the  party  by 
whom  it  is  pleaded  proves  it  he  will  be  entitled  to  recover.  No 
such  thing  is  adjudged  where  a  demurrer  is  sustained  to  one 
paragraph  of  several.  It  is  true  that  it  is  adjudged  that  the 
paragraph  is  insufficient,  but  no  harm  can  result  from  such  a 
ruling,  if,  in  fact,  no  competent  evidence  is  excluded,  and  it  is 
not  excluded  if  other  paragraphs  are  left  standing  which  en- 
title it  to  admission.  It  is  far  otherwise  where  an  insufficient 
paragraph  is  adjudged  sufficient,  for  there  is  nothing  to  aid  the 
party  who  demurs.  All  that  he  can  do  is  to  except  to  the  ruling.1 
He  has  a  right  to  test  the  pleading  by  demurrer,  and  if  it  is 
held  good  when  it  should  have  been  held  bad  he  can  not  call  to 
his  aid  other  pleadings.  He  has,  also,  a  right  to  assume  that 
the  court  will  adhere  to  the  theory  declared  or  indicated  by  its 


1  Scott  v.  Stetler,  12S  Ind.  3S5,  3S6; 
Messick  v.  Midland  R.  Co.,  12S  Ind.  Si, 
84;  Hormann  v.  Hartmetz,  12S  Ind. 354, 
355;  Thompson  v.  Lowe,  in  Ind.  272; 
Epperson  v.  Hostetter,  95  Ind.  583; 
McComas  v.  Haas,  93  Ind.  276,  281; 
Eve  v.  Louis,  91  Ind.  457,  463;  Wilson 
•v.  Town  of  Monticello,  85  Ind.  10,  21; 
Sims  v.  City  of  Frankfort,  79  Ind.  446, 
449;  Over  v.  Shannon,  75  Ind.  352; 
Comers  v.  Mcricles,  75  Ind.  443,  446; 
Weir  :•.  State,  96  Ind.  311,  315;  Ker- 
nodle  :'.  Caldwell,  46  Ind.  153.  In  the 
case  of  Pittsburgh,  etc.,  Co.  v.  Van 
Ilouten,  4S  Ind.  90,  96,  the  court,  an- 
swering the  argument  of  counsel,  said: 
"But  counsel  seek  to  apply  a  wrong 
rule.  The  rule  is  applicable  when  a  de- 
murrer has  been  sustained  to  a  plead- 
in-  and  the  same  matter  is  admissible 
under  another  pleadingwhich  remains." 
In  Booker  v.  Goldsborough,  44  Ind.  490, 
500,  it  was  said  :  "  But  it  is  insisted 
that  the  appellants  were  not  injured  by 
the  action  of  the  court  in  overruling  the 
demurrer,  as  the  same  facts  were  ad- 
missible under  the  second   paragraph. 

39 


Where  a  demurrer  is  sustained  to  a 
good  special  answer,  the  error  will  be 
harmless  if  the  same  facts  are  admis- 
sible under  some  other  paragraphs,  but 
the  rule  is  otherwise  where  a  demurrer 
is  overruled  to  a  bad  special  answer.  In 
the  case  first  supposed  the  defendant 
can  offer  his  evidence  under  the  other 
paragraph  and  may  avail  himself  of  any 
question  of  law  arising  therein  by  in- 
struction or  otherwise.  In  the  latter 
case  a  plaintiff  has  no  mode  of  availing 
himself  of  the  objections  to  the  answer 
but  by  demurrer,  and  that  being  over- 
ruled, if  the  answer  is  true  in  fact,  his 
case  is  at  an  end."  The  court  said  in 
the  case  of  Abdil  v.  Abdil,  ^3  Ind.  46O1 
464:  "  But  where  special  answers  are 
held  good  it  is  not  perceived  that  the 
plaintiff  is  in  any  way  benefited  by  the 
general  denial  being  in.  He  has  no 
mode  of  availing  himself  of  the  objec- 
tions to  the  answer  but  by  demurrer, 
and  that  being  overruled,  if  the  answer 
is  true  in  point  of  fact,  his  case  is  at 
end." 


610  ERROR  IN  JUDICIAL  PROCEEDINGS. 

ruling  and  to  conduct  the  case  until  the  end  upon  that  assump- 
tion.1 

§  670.  Rulings  in  Admitting  and  Excluding  Evidence— Preju- 
dicial error  is  often  committed,  as  is  sufficiently  obvious,  in 
rulings  made  in  admitting  and  excluding  evidence.  A  violation 
of  the  established  rules  of  evidence  is  always  error,  but,  as  we 
have  shown  in  a  former  chapter,  it  is  not  always  prejudicial 
error,  that  is,  it  is  not  always  available  for  a  reversal  of  the 
judgment.2  It  may  not  be  prejudicial  in  legal  contemplation 
for  three  reasons:  First,  it  may  have  been  invited;3  second, 
it  may  not  be  material  ;4  third,  it  may  not  exert  any  influence 
upon  the  ultimate  decision  of  the  case.5  Where  there  is  a  con- 
flict of  evidence  a  party  is  entitled  to  all  legitimate  evidence  in 
his  favor,  and  to  the  exclusion  of  all  incompetent  evidence 
against  him.  Our  statement  outlines,  at  least,  a  rule  which  no 
one  will  challenge,  but  how  it  shall  be  applied  is  a  question 
full  of  difficulty.  Some  of  the  courts  indicate  that  it  is  proper 
to  examine  and  weigh  the  evidence  and  if  it  is  found  to  clearly 
and  decidedly  preponderate  in  favor  of  the  successful  party  to 
treat  the  ruling  admitting  or  rejecting  evidence  as  harmless.6 

1  Ante,  §  591.  Graff,  25  Neb.  130,  41  N.  W.  Rep.  142; 

2  Ante,  §  632.     "  Error  without  prej-     Dale  v.  See,  51N.  J.  L.  37S,  iS  Atl.  Rep. 
udice."    See,  also,  People  v.  Collins,  75     306. 

Cal.  411,  17  Pac.  Rep.  430;  Cowles  v.  *  Wagner  v.  State,  116  Ind.   1S1,   iS 

Robinson,   11    Col.   5S7,   19  Pac.  Rep.  N.   E.    Rep.    S33;  Couts    v.    Neer,  70 

654;   State  v.  Pugsley.  75  Iowa,  742,  38  Texas,  468,  9  S.  W.  Rep.  40;  Pearce  v. 

N.  W.  Rep.  49S;  Norwich,  etc.,  Co.  v.  Pettit,   85    Tenn.   724,   4    S.    W.    Rep. 

Worcester,  147  Mass.  518;   Hamilton  v.  526;  People  v.  Ching  Hing  Chang,  74 

Ross,  23  Neb.  630,  37  X.  W.  Rep.  467;  Cal.  389,   16  Pac.  Rep.  201;   Duncan  v. 

Hoar  v.  Leaman  (Pa.),  15  Atl.  Rep.  716;  Kohler.  37  Minn.  379,  34  N.  W.  Rep. 

Riggs v.  Wilson,  30  So.  Car.  172,  8  S.  E.  594;     Mcllvain   v.    State,   80   Ind.    69; 

Rep.  S48;  Rorer  Iron   Works  v.  Trout,  Hessin   v.    Heck,  SS  Ind.  449;  Mills  v. 

83  Va.  397,  5  Am.  St.  Rep.  285;  State?.  Winter,  94  Ind.  329;  Lovinger  v.  First 

Shoemaker,  101  N.C.  690,  8  S.  E.  Rep.  National  Bank,  Si  Ind.  354. 

332;  Brown  v.  Owen.  94  Ind.  31;  Gos-  5  Ante,  §  590.     "  The  ultimate  ruling 

sard  v.  Woods.  98  Ind.  195;  Lake  Erie,  is  decisive."     See,  generally,   Giffin  v. 

etc.,  v.  Griffin,  107  Ind.  464;  Newcomer  Barr,  60  Vt.  599,  15  Atl.  Rep.  190;  Tur- 

v.  Hatchings.  96  Ind.  119.  ner  v.  White,  77  Cal.  392,  19  Pac.  Rep. 

I  ite,  Chapter   III,  Part  II.     "  In-  6S3;  Rea  v.  Scully,  76  Iowa,  343,  41  N. 

vited  Error."     Nitches.  Earle,  117  Ind.  W.  Rep.  36. 

270.   19  N.  E.  Rep.    749;    Robinson   v.  6  Holstein  v.  Adams,  72  Tex.  485,  10 

Shank,   11S   Ind.    121,    133;     Howell   v.  S.  W.  Rep.  560;   Hooker  v.  Brandon,  75 


PREJUDICIAL    ERROR.  61  1 

We  can  not,  we  say  with  deference  as  becomes  us  in  view  of 
the  many  decisions  upon  the  question,  give  our  adherence  to 
this  doctrine.  The  scale  may  be  turned  against  a  party  by  the 
exclusion  of  evidence  seemingly  of  no  great  weight,  yet  be- 
cause of  the  conduct,  demeanor  and  situation  of  a  witness, 
really  of  controlling  weight,  while,  on  the  other  hand,  it  may 
be  inclined  against  him  by  the  admission  of  incompetent  evi- 
dence apparently  uninfluential,  but,  in  fact,  of  great  influence. 
Testimony  from  a  living  witness  carries  a  very  different  influ- 
ence from  testimony  reduced  to  writing  and  appearing  on  the 
pages  of  a  lifeless  record.  It  is,  as  we  believe,  an  indefensible 
departure  from  principle  for  an  appellate  tribunal  to  assume 
the  functions  of  a  jury  and  weigh  the  evidence  for  the  purpose 
of  determining  on  which  side  it  preponderates.  Where  there  is 
no  conflict  of  evidence,  or  where  the  conflict  is  so  slight  as  to 
be  undeserving  of  serious  consideration,  then  there  is  no  reason 
why  the  appellate  tribunal  may  not  say  from  an  examination 
of  the  record  that  no  harm  was  done  by  the  wrong  ruling  let- 
ting in  the  incompetent  evidence  or  keeping  out  the  competent, 
but  it  is  far  otherwise  where  the  evidence  is  conflicting  and  re- 
quires study  and  analysis  in  order  to  ascertain  on  which  side  it 
preponderates.     Where  the  evidence  admitted  or  excluded  is 

Wis.  S,  43  N.  W.  Rep.  741 ;  Roe  r-  Kan-  St.  327,  331 ;  Morris  v.  Runnels,  12  Tex. 
sas  City,  etc.,  Co.,  100  Mo.  190,  13  S.  17S;  Manny  v.  Glendinning,  15  Wis.  ;>>. 
W.  Rep.  404;  State  v.  Severson.  7S  The  statement  of  the  general  rule  is  cor- 
Iowa,  6^3,  43  N.  W.  Rep,  533;  Clem  v.  rect,  although  indefinite  and  incomplete. 
Commonwealth  (Ky.),  13  S.  W.  Rep.  It  is  no  doubt  true  that  there  are  many 
102;  Kuh  v.  Metropolitan  Ry.  Co..  26  cases  where  the  court  can  determine 
|.  &  S.  (N.  Y.)  13S,  9  N.  Y.  Supp.  710;  without  weighing  the  evidence  whether 
Young  v.  Hudson, 99  Mo.  102;  Ganson  the  particular  evidence  was  or  was  not 
v.  Madigan,  15  Wis.  144,  S.  C.  82  Am.  likely  to  have  influenced  the  verdict. 
Dec.  659,  666.  In  the  case  of  Barton  v.  Where  the  court  can  declare  without 
Kane,  17  Wis.  38,  S.  C.  84  Am.  Dec.  72S,  weighing  conflicting  evidence  that  the 
the  court  said:  " No  doubt  merely  ir-  particular  evidence  excluded  or  ad- 
relevant  evidence — that  which  has  no  mitted  did  not  influence  the  verdict, 
tendency  to  influence  a  verdict  either  then  a  wrong  ruling  may  well  be  re- 
way — does  not  vitiate.  It  must  appear  garded  as  harmless,  but  the  case  is  very 
that  the  party  objecting  was,  or  may  different  where  the  effect  of  the  particu- 
have  been,  injuriously  affected."  The  lar  evidence  can  not  be  determined 
court  cited  Dunlay  v.  Edwards.  29,  Mi>s.  without  considering  and  weighing  con- 
41;  Routh  v.  Agricultural  Bank,  12  flicting  evidence. 
Smedes  &  M.  161 ;   Lobb  v.  Lobh,  26  l'a. 


612 


ERROR   IN    JUDICIAL  PROCEEDINGS. 


clearly  immaterial  there  can  seldom  be  any  difficulty,  for,  ordi- 
narily, such  evidence  can  not  exert  any  influence,  but,  even 
immaterial  evidence,  if  given  undue  prominence  by  repetition, 
may  work  injury.1  It  is  impossible  to  formulate  any  general 
rule  that  will  be  satisfactory  and  free  from  exceptions,  but  we 
think  it  safe  to  say  that  the  decided  weight  of  authority  war- 
rants this  statement :  Where  the  wrong  ruling  is  not  invited  and 
the  evidence  admitted  or  excluded  is  material,  the  error  will  be 
available  for  the  reversal  of  the  judgment,  unless  the  appellate 
tribunal  can  ascertain  com  the  record  without  assuming  the 
functions  of  the  triers  of  the  facts  by  weighing  conflicting  evi- 
dence, that  the  wrong  ijuling  did  not  prejudice  the  substantial 
rights  of  the  complaining  party.2     Where  the  evidence  is  of 

1  Orr  v.  Miller,  98  Ind.  436;  WLkley  the  question  by  saying  that  the  evidenr-e 

v.   Foye,   33    N.    H.  171,   S.   C.   66  Am.  was  irrelevant. 

Dec.  715.     The  Supreme  Court  of  New  2  Daley   v.   American,   etc.,    Co.,   150 
Hampshire,  in  discussing  this  plr,se  of  Mass.   77,    22    N.    E.  Rep.   439.     In    re 
the   subject  in  the  case   of  Winkley  v.  Eysaman's  Will.,  113N.Y.62,  20  N.  E. 
Foye,  28  N.  H.  513,  said:     "  Evidence  Rep.  613.      In    re    Carpenters    Estate, 
which    has  no   legitimate  bearing  may  79  Cal.  382,  21  Pac.  Rep.S35;  Brown  v. 
still  have  an  unfavorable  influence  upon  Klock,  117  N.Y.  340,  22  N.  E.  Rep.  944; 
a  claim   or  defense.     It  maybe  calcu-  Tollena.  Read,  32  N.Y.  Supr.  46;  Max- 
lated  to  excite  prejudices,  or  raise  false  well  v.  State,  89  Ala.  150,  7  So.  Rep.  S24; 
impressions,  and  in  such  cases  its  ad-  Skeels   v.  Starrett,  57  Mich.  350,  24  N. 
mission   may  furnish  good  grounds  to  W.  Rep.  98;  States.  Ezekiel,  33  So.  Car. 
set  aside  the  verdict."     In   the  case  be-  115,  11  S.  E.  Rep.  635;   State  v.  Olds,  19 
tween    the   same   parties   cited   in   this  Ore.  397,  24  Pac.   Rep.  394;    Drew  v. 
note  this  doctrine  was   re-asserted.     It  State,  124  Ind.  9,  23  N.  E.  Rep.  1098; 
cis  to  us  to  be  the  sound   rule,  and  Spanagel    v.    Dellinger,   38   Cal.    27S; 
that  expressions  found  in  some  of  the  Sweeney  V.  Reiley,  42  Cal.  402;   Stan- 
cases  indicating  a  different  doctrine  are  v.  Cass,  23  Ind.  458;  Rohlfingf.  Light- 
erroneous.     Much  must,  of  course,  de-  body,  36  Kan.  500,   13  Pac.   Rep.  836; 
pend    upon   the  particular  case,   but   it  Marsh  v.   Wade,   1  Wash.  120,   153,  20 
seems  to  us  that  where  a  party  gives  in-  Pac.  Rep.  57S;   Farris  v.  People,  129  111. 
competent  evidence  over  the  objection  521,21  N.  E.  Rep.  S21,  S.  C.4  Law.  Rep. 
of  his  adversary  that  has  a  tendency  to  Anno.  582;  Biemel  V .  State,  71  Wis.  444, 
divert  the  minds  of  the  jurors  from  the  37  N.  W.  Rep.  244;   Yarnumr.  Hart,  17 
real  issue  or  to  inflame  their   passions  Hun.  18;  People  v.  Hillhouse,  80  Mich. 
01     excite    their   prejudices  the  appel-  580,  45  N.W.  Rep.  484;  FortWorth,etc, 
late    tribunal  should    reverse  the  judg-  Co.  v.  Thompson,  75   Texas,  501,  12  S. 
ment,  unless  the  record  shows  conclu-  W.  Rep.  742;  Gurney  v.  Brown,  27  111. 
sivelv   that  no    injury  could    have    re-  App.  640.  Some  of  the  courts  discrimi- 
sulted  from  the  wrong  ruling.     It,  cer-  nate  between  the  admission  and  the  ex- 
tainly,  docs   the  complaining  party   in  elusion  ofincompetent  testimony.  Thus, 
such  a  case  scant  justice  to  dispose  of  in  Estate  of  Toomes,  54  Cal.  509.  510,  it 


PREJUDICIAL   ERROR. 


6  1  3 


such  a  character  that  it  is  likely  to  turn  the  scale,  then,  what- 
ever the  elements  that  impress  upon  it  that  character,  whether 
because  the}-  are  such  as  arouse  prejudice  or  tend  to  produce 
conviction,  it  should  be  regarded  as  material,  and  a  wrong 
ruling  respecting  it  should  be  deemed  prejudicial,  if  the  case  is 
not  entirely  clear  upon  the  evidence  or  record.1  If  the  evidence 
is  of  such  a  character  as  to  be  likely  to  mislead  the  jury,  turn 
their  minds  in  the  wrong  direction  and  into  improper  channels, 
leading  to  a  wrong  result,  the  error  in  admitting  it  is  presump- 
tively harmful,  and  unless  the  presumption  is  satisfactorily  re- 
butted the  judgment  will  be  reversed.2 

was  said:     "But  whatever  may  be  the  such    case    we    are  bound    to  presume 

rule  upon  tftis  point  when  improper  evi-  that  the  court  took  into  consideration 

dence  has   neen   introduced  not  chang-  all   the  evidence  which  had  a  bearing 

ing  the  result,  it  seems  to  be  well  set-  upon  the  issue,  but  such   presumption 

tied   that  the  exclusion  of  proper  evi-  would   not  be    indulged   where   wholly 

dence  is  ground  of  reversal."     In  the  immaterial  and  irrelevant  evidence  had 

case  of  Arthurs  v.  Hart,    17  How.  (U.  been  admitted." 

S.)    6,  the  court   said:     "The  case   of  '  In    Mays   v.    Hedges,  79  Ind.   288, 

the  refusal  of  proper  evidence  on  the  293,  it  was  said:     "The  testimony  was 

trial  is  subject  to  very  different  consid-  calculated  to  make  an  impression  upon 

erations  irom  those  applicable   to   the  the  minds  of  the  jurors  favorable  to  the 

improper  admission  of  it,  and  lead  to  a  appellee.     We  can   not   say  that  it  did 

determination    of    it    upon    principles  not    influence  the  minds   of  the    jury. 

wholly    inapplicable    in   case    the  evi-  Where  it  is  clear  that  irrelevant   testi- 

dence  had  been  admitted."     It  is  to  be  mony    could    not    have    influenced    ,l 

observed   of  the  cases   from  which  we  jury    adversely    to    the    party    against 

have  quoted  that  the  courts  were  speak-  whom  it  is  admitted,  it   may  be  said  to 

ing  of  cases  where  the  trial  was  by  the  be  harmless,  but  not  otherwise." 

judge.     Our  cases  do  not  recognize  the  3  Barnett  v.  Leonard,  66  Ind.  422, 427; 

distinction.  Baker  v.  Dessauer,  49  Ind.  Memphis,  etc.,  Co.  v.  McCool,  S3  Ind. 

28,  32;   Weik  :•.  Pugh,  92  Ind.  382,  3S7.  392,  397;   Orr  v.  Miller.  98  Ind.  436.    In 


The  case  last  cited  states  the  rule  re- 
specting immaterial  evidence  much 
stronger  than  principle  or  authority 
warrants.     The  ease  of  Kin^  :\  Enter- 


Morgan  v.  State,  31  Ind.  103,  the  court 
said:  "  The  error  having  occurred,  did 
it  harm  the  appellant?  The  presump- 
tion is  that  it  did.  and   unless    it  clearly 


prise  Ins.  Co.,  45  Ind.  43.  does  not  hold  appears  that  it  did  not  we  must  reverse 

that  a  judgment  will   be  reversed   for  the  judgment."     This  general  doctrine 

the   admission  of  immaterial  evidence,  is  well   supported.     Belden  v.  Nicolay, 

for  in   that  case   the   incompetent  evi-  4  E.  D.  Smith,   14;  Thompson  v.  Wil- 

dence  was  of  a  material  character.     It  son.  34  Ind.  94,  97;    Baker  v.  Dessauer. 

was  there  said  in  substance   that  there  49   Ind.   28;    Bellefontaine,  etc.,    C 

was   a  conflict  of  evidence  upon    ma-  Hunter,33  Ind.  335;  Vandivere  i>.  Dol- 

terial  points  and  that   the  evidence  ad-  lins.   49   Ind.   210;    King  v.  Enterprise 

mitted  had  an  important    bearing  upon  Ins.Co.,45  l'u'-4.v    Simmons  :•.  S 

those    points.      It    was   also   said:      "In  20   Fla.  449,  S.    C.  g   Law.   Rep.  Anno. 


614  ERROR   IN  JUDICIAL  PROCEEDINGS. 

§  071.  Conduct  of  the  Trial — The  questions  which  it  is  our  pur- 
pose to  consider  in  this  paragraph  are  such  as  arise  upon  the 
rulings  directing  the  conduct  of  the  trial,  excluding  as  far  as 
possible  questions  relating  to  the  evidence,  the  instructions  and 
the  like,  and  gathering  up  miscellaneous  matters  of  practice. 
It  is  convenient  and  not  altogether  inappropriate  to  use  the 
term  "  conduct  of  the  trial  "  in  the  restricted  sense  in  which  we 
here  employ  it,  although  it  is  often  employed  in  a  much  more 
comprehensive  sense.  Without  further  preface  we  direct  at- 
tention to  the  fact  that  prejudicial  error  may  often  be  alleged 
upon  wrong  rulings  regarding  the  right  to  open  and  close  the 
case.  Some  of  the  courts  hold  that  the  question  as  to  who 
shall  open  and  close  the  case  is  one  of  discretion,  but  our  courts 
and  the  great  majority  of  the  courts  hold  that  the  question  is 
not  one  of  discretion.  If  the  trial  court  denies  a  party  entitled 
to  the  open  and  close  that  right,  the  error,  if  properly  saved 
and  presented  on  appeal,  is  available  for  the  reversal  of  the 
judgment.1  The  party  on  whom  the  burden  of  proof  rests  has 
a  right  to  the  open  and  close,  and  where  the  burden  of  proof 
rests  is  to  be  determined  from  the  issue  made  by  the  pleadings.2 
In  general  the  plaintiff  has  the  right  to  the  open  and  close,  but 

343;    Terre   Haute,  etc.,   Co.  v.   Teel,  2  Heilman   v.  Shanklin,  60  Ind.  424, 

20  Ind.   131;  Fordyce   v.  McCants,  51  444;    Gaul    v.    Fleming,     10    Ind.    253; 

Ark.  509,  S.  C.  4  Law.  Rep.  Anno.  296;  Hamlyn  v.  Nesbit,  37  Ind.  284;   Lynam 

Smiths  v.  Shoemaker,  17  Wall.  630,  639;  v.  Buckncr,  60  Ind.  402,  409;  Camp  v. 

Deerj-  v.  Cray,  5  Wall.  795;   Moores  v.  Brown,    48    Ind.    575.       In    Lynam    v. 

National  Bank,  104  U.  S.625,  630;  Gil-  Buckner,  supra,  it  was  said:    "The  rule 

mer  v.  Higley,   no  U.  S.  47,  50.     See  is  well  settled  in  civil   actions  that   the 

Ante,  §  594.      "  Presumption  of  preju-  party  upon   whom   the   burden  rests  is 

dice  from  erroneous  rulings."  entitled  to  open  and  close  the  case  on 

1  Ashing  v. Miles,  16  Ind.  329;   White  the  trial  thereof."     See,  also,  Fetter-  v. 

v.  Carlton,  52  Ind.  371;   White  Water,  Muncie    National    Bank,    34    Ind.   251; 

etc.,  Co.f.  McClure,  29  Ind.  536;  Haines  Judah    v.    Trustees,    etc.,    23  Ind.  272; 

v.  Kent,   n   Ind.   126;    Kirkpatrick    v.  McLees  v.  Felt,  n   Ind.  21S;   Hyatt  t\ 

Armstrong,    79    Ind.    384;     Kinney    v.  Clements,  65  Ind.  12;  Tull  v.  David,  27 

Dodge,  101  Ind.  573;   McCormick.  etc.,  Ind.  377;    Love  v.  Dickerson,  85  N.  C. 

Co.  v.  Gray,   100  Ind.  2S5;   Whitesides  5;   Rolf  v.  Pillond,   16  Neb.  21,  19   N. 

v.  Hunt,  97  Ind.  191;   Bannister  v.  Jett,  W.  Rep.  615;   Fry  v.  Bennett,  28  N.  Y. 

83  Ind.  129;  Clarkson  v.  Meyer,  14  N.  324;  McConnell  v.  Kitchens,  20  So.  Car. 

Y.  Supp.  144;   Edwards  v.  Hushing.  31  430;     Perkins    v.    Ermel,    2    Kan.  325; 

111.  App.  223:    Lake,  etc..   Bank  v.  Jud-  Johnson  t\  Josephs,  75  Me.  544. 
son,  122  N.  Y.  27S.  25  N.  E.  Rep.  367. 


PREJUDICIAL   ERROR. 


615 


this  is  by  no  means  invariably  true,  for  the  defendant  may  often 
have  the  right  to  open  and  close  the  case.  Where  the  plaintiff 
is  required  to  produce  evidence  to  sustain  the  issue  tendered  by 
him  he  has  the  right  to  open  and  close,1  and  this  is  true  where 
there  are  several  issues,  if  the  burden  is  upon  the  plaintifl  to 
prove  any  one  of  them.2  Where  there  are  several  defendants 
the  plaintiff  may  open  and  close  the  case  as  to  all  if  he  has 
that  right  as  against  one  of  them.3  The  defendant  may.  by 
fully  confessing  all  the  material  allegations  of  the  plaintifl  s 
complaint,  obtain  the  right  to  open  and  close  the  case,4  but  all 
of  the  material  allegations  must  be  confessed,  for  if  any  are 
denied,  whether  by  a  direct  or  by  an  argumentative  denial,  the 
right  will  be  in  the  plaintiff.5  It  is  not  necessary  that  immate- 
rial allegations  be  confessed,  it  is  enough  if  all  the  material  al- 
legations are  admitted.0  If  the  defendant  concedes  to  the 
plaintiff  a  -prima  facie  case,  the  right  to  open  and  close  belongs 


1  Osborne  v.  Kline,  18  Neb.  344.  25 
N.W.  Rep.  360;  Lexington,  etc.,  Co.  v. 
Paver,  16  Ohio,  324,  330;  Mizer  t.  Bris- 
tol, 30  Neb.  13S,  46  N.  W.  Rep.  293; 
Johnson  v.  Josephs,  75  Me.  544;  Dille 
v.  Lovell,  37  Ohio  St.  415;  Swafford  v. 
Whipple,  3  G.Greene,  261,  S.  C.  54  Am. 
Dec.  49S;  Baltimore,  etc.,  Co.  v,  Mc- 
Whinney,  36  Ind.  430;  Mercer  :■.  Whall, 
5  Ad.  &  El.  (N.  S.)  447;  Cunningham 
v.  Gallagher,  61  Wis.  170;  Camp  v. 
Brown.  48  Ind.  575;  Rahm  v.  Deig,  121 
Ind.  283;  Turner  v.  Cool,  23  Ind.  56; 
Hyatt  v.  Clements,  65  Ind.  12;  Burck- 
halter  v. Coward,  16  So.  Car.  435;  Ber- 
tram!  -'.  Taylor,  32  Ark.  470. 

1  Johnson  v.  Maxwell.  87  X  C.  18; 
Jackson  v.  Hesketh,  2  Stark  R.  454; 
Bowen  v.  Spears,  20  Ind.  140;  Jackson 
v.  Pittsford,  8  Blackf.  [94;  Montgomery 
V.  Swindler,  32  Ohio  St.  22  \.  226;  Da- 
vidson v.  Henop,  1  Cranch.  C.  C.  :so; 
Churchill  V.  Lee,  77  N  .  C.  3  1 1 :  Zchner 
v.  Kepler,  16  Ind.  290;  Bowen  v.  Spears, 
20  Ind.  146;  Buzzell  v.  Snell,  25  N.  II. 
474;  Viele  v.  Germania  In-..  Co.,  26  la. 
■q;  Ridgway    v.    Ewbank,    2   Moody    & 


Rob.  217;  Rials  v.  Powell  (Ga.),  9  S.  E. 
Rep.  613. 

3  Clodfelter  v.  Hulett,  92  Ind.  426; 
Sodousky  v.  McGee,  4  J.  J.  Marsh.  267; 
Central  Bank  v.  St.  John,  17  Wis.    157. 

4  Thurston  v.  Ken  net  t,  22  X.  H.  151; 
Huntington  v.  Conkey,  t,:-,  Barb.  21S; 
McCormick,  etc.,  Co.  v.  Gray,  100  Ind. 
285;  City  of  Aurora  v.  Cobb,  21  Ind. 
493;  Campbell  v.  Roberts.  66  Ga.  733; 
Conselyea  v.  Swift,  103  X.Y.  604;  See- 
kel  v.  Norman,  78  Iowa,  254,  43  X.  W. 
Rep.  190;  P. irks  v.  Young,  75  Texas, 
278;  Firemans  Ins.  Co.  v.  Schwing 
(Ky.),  n  S.  \V.  Rep.  14;  Stith  v.  Ful- 
linwieder,  ;o  Kan.  73,  10  Pac.  Rep.  314. 

5  Robbins  v.  Spencer,  121  Ind.  594,  22 
N.  E.    Rep.  660;    Rothrock  v.  Perkin- 

'•1    [nd.   39;   Bradley    v.  Clark,    1 
Cush.  293;    Turner  ;■.  Cool,  27,    Ind.  56; 

Shulse  :p.  McWilliams,   104    Ind.   512; 
Stayner  :\]oyi:K.',  120  Ind.  99.  22  X.  E. 

Rep.  89. 

6  Millerd  v.  Thorn,  56  X.  Y.  40;, 
Lisl  v.  Kortepeter,  26Ind.27;  McLees 
v.  Felt,  11  Ind.  218. 


616 


ERROR   I\  JUDICIAL  PROCEEDINGS. 


to  him.1  Perhaps  as  good  a  general  test  as  can  be  suggested 
is  supplied  by  the  answer  to  the  question,  who  must  do  the  acts 
or  give  the  evidence  required  to  change  the  existing  state  of 
things?  If  the  defendant  is  the  actor  and  must  give  evidence 
to  alter  the  state  of  things  shown  by  the  pleadings  to  exist  he 
'has  the  burden,  and  with  the  burden  possesses  the  correlative 
right  to  open  and  close  the  case,  for  the  right  generally  vests 
in  the  party  who  has  the  burden.2     It  may  be  prejudicial  error 


1  Shank  v.  Fleming, 9  Ind.189;  Judah 
v.  Trustees,  etc.,  23  [nd.272;  Goodrich 
v.  Friedersdorff,  27  Ind.  30S;  State, 
etc.,  Board  v.  Gray,  54  Ind.  91.  Where 
the  defendant  pleads  a  counter-claim 
he  has  the  open  and  close.  Schee  v. 
McQuillken,  59  Ind.  269;  McCormick, 
etc.,  Co.  v.  Gray,  100  Ind.  285.  In  the 
case  last  cited  it  was  said:  "  Under  the 
pleadings  the  plaintiff  was  entitled  to 
recover  its  whole  demand  without  any 
evidence,  unless  the  defendant  by  his 
evidence  established  his  counter-claim. 
The  defendant,  therefore,  was  entitled 
to  open  and  close."  But  the  right  to 
open  and  close  the  case  has  been  held 
not  to  extend  in  all  cares  to  the  right  to 
open  and  close  the  argument.  Thus, 
where  the  plaintiff  has  the  burden  on 
some  issues  and  the  defendant  the  bur- 
den on  others,  and  the  plaintiff  offers 
no  evidence  whatever  upon  the  issues 
on  which  he  has  the  burden,  the  de- 
fendant is  entitled  to  open  and  close  the 
argument.  Reynolds  v.  Baldwin,  93 
Ind.  57,  59;  Zehner  v.  Kepler,  16  Ind. 
290;  Williams  v.  Allen,  40  Ind.  295. 
In  Zehner  v.  Kepler,  supra,  the  court 
said:  "  In  such  case  upon  the  close  of 
the  evidence,  the  plaintiff  having  of- 
fered no  evidence  in  support  of  the  issue 
ng  upon  him,  it  would  seem  to  be 
eminently  proper  for  the  court  to  award 
the  opening  and  closing  of  the  argu- 
ment to  the  defendant.  If  any  evidence 
at  all  is  given  to  the  jury  having  ;•  ten- 
dency  to    support  the   issue   devolving 


upon  the  plaintiff,  he  would,  of  course, 
be  entitled  to  have  it  passed  upon  by  the 
court,  and  to  open  and  close  the  argu- 
ment. Otherwise  not,  and  this  may 
properly  be  determined  by  the  court. 
Crookshank  v.  Kellogg,  8  Blackf.  256." 
So  admissions  on  the  trial  may  control 
the  question.  Hall  v.  Weare,  92  U.  S. 
72S,  738;  Love  v.  Dickerson,  85  N.  C. 
5;  Viele  v.  Germania  Ins.  Co.,  26 
Iowa,  9;  Mann  v.  Scott,  t,2  Ark.  593, 
596;  Richards  V.  Nixon,  20  Pa.  St.  19; 
Cross  V.  Pearson,  17  Ind.  612.  Error 
in  refusing  a  party  the  right  to  open 
and  close  is  not  cured  by  permitting  the 
party  claiming  it  the  right  to  open  the 
argument.  Penhryn  Slate  Co.f.  Meyer, 
8  Daly,  61.  In  an  appeal  from  proceed- 
ings to  appropriate  lands  the  land- 
owner is  entitled  to  the  open  and  close. 
Indiana,  etc.,  Co.  v.  Cook,  102  Ind. 
133;  Burt  v.  Wiggles  worth,  117  Mass. 
302;  Minnesota,  etc.,  Co.  v.  Doran, 
17  Minn.  18S;  Oregon,  etc.,  Co.  v. 
Barlow,  3  Ore.  311;  Connecticut, 
etc.,  Co.  v.  Clapp,  1  Cush.  559,  Peed  i<. 
Brenneman,  89  Ind.  252. 

2  Chesley  v.  Chesley,  37  N.  H.  229; 
Daviess  v.  Arbuckle,  1  Dana,  525; 
Huntington  v.  Conkey,  33  Barb.  218, 
228;  Boyce  v.  Lake,  17  So.  Car.  Rep. 
4S1;  Kennedy  v.  Moore,  17  So.  Car. 
464;  Camp  v.  Brown,  48  Ind.  575;  Lit- 
tlejohn  v.  Greeley,  13  Abb.  Pr.  41,  45; 
Young  v.  Highland,  9  Gratt.  16;  Wrighl 
v.  Abbott.  85  Ind.  154;  Sanders  t\  San- 
ders, 30  So.  Car.  207,  9  S.  E.  Rep.  94. 


PREJUDICIAL  ERROR.  617 

to  permit  counsel  in  the  opening  statement  to  the  jury  to  intro- 
duce matters  that  can  not  be  allowed  to  go  in  evidence.1  It  is 
proper  for  the  court  to  refuse  to  permit  counsel  to  argue  ques- 
tions of  law  at  length  to  the  jury  in  the  opening  statement,2  but 
it  is  proper  to  permit  counsel  to  state  to  the  jury  the  case  both 
as  to  the  law  and  the  evidence.3  It  is,  however,  not  prejudicial 
error  for  the  court  to  impose  a  reasonable  limitation  upon  coun- 
sel.1 While  it  is  proper  for  counsel  to  state  in  general  the  facts 
of  the  case,  yet  they  can  not  successfullv  insist  upon  the  right 
to  rehearse  the  evidence  in  minute  detail,  for  in  this  regard  the 
rule  as  to  the  opening  statement  is  different  from  the  rule  ap- 
plicable to  arguments  made  after  the  delivery  of  the  evidence.5 
On  the  other  hand,  counsel  can  not  be  compelled  to  state  the 
items  of  evidence  in  the  opening  statement.6  There  is  much 
conflict  among  the  decisions  as  to  whether  the  party  can  be  so 
bound  by  his  opening  statement  as  to  authorize  the  court  to 
direct  a  verdict  against  him  in  cases  where  no  cause  of  action 
is  shown.7  It  seems  to  us  that  no  general  rule  can  be  formu- 
lated that  will  fit  all  cases,  since  much  must  depend  upon  the 
peculiar  circumstances  of  the  particular  case.  Where  counsel 
have  a  right  to  use  an  instrument  of  evidence  for  the  purpose 
of  enabling  the  jury  to  comprehend  the  facts,  it  is  prejudicial 
error  for  the  court  to  deny  them  that  right.8     It  would  unjustly 

1  Duncombe  V.  Daniell,  S  Carr  &  P.  Pollock  are  interesting  and  instructive. 
222;  Hennies  v.  Vogel,  87  111.  242;  Mc-  4  Porters.  Throop,  47  Mich.  313,  11 
Lain  v.  State,  iS  Neb.  154,  24  N.  W.  N.  W.  Rep.  174;  Ayrault  v.  Chamber- 
Rep.  720;  Stevens  v.  Webb,  7  Carr  &  lain,  33  Barb.  229;  Anderson  v.  State, 
P.  60;  People  v.  Montague,  71  Mich.  104  Ind.  467,  4  N.  E.  Rep.  63;  Walsh  v. 
447;  Scripps  v.  Reilly,  35  Mich.  371,  S.  People,  SS  N.  Y.  45S;  Fraser  v.  Jehni- 
C.  24  Am.  Rep.  575.  son.  42  Mich.  206. 

7  People    v.   Carty,   77   Cal.  213,   19  B  Scripps  v.  Reilly,  35  Mich.  371, 392 ; 

Pac.  Rep.  490.     See,  generally,  People  Kelly  v.  Troy,  etc.,  Co..  3  Wis.  254. 

v.  Goldenson,  76  Cal.  32S.  6  Scripps  v.  Reilly,  35  Mich.  371. 

3  People  v.  Chalmers,  5  Utah.  201,  14  7  Clows  v.  Bank.  105   N.  Y.  39S;  Os- 

Pac.    Rep.    131;    Campbell    v.    City   of  canyan   v.    Anns    Co.,   103   U.   S.   261; 

Kalamazoo,  80   Mich.  655.     Sec.   gen-  Ward  v.  Jewett,  4  Robt.   714;    Smith  v. 

erally,  People  v.  Wilson,  55  Mich.  506,  Commonwealth,  etc.,  Co.,  10  Wis    522, 

513;  Holmes f. Jones,  121  N.Y.46i;The  5  N.W.  Rep.  S04.    Sec  Hearing  v.  Bell, 

Work  of  the    Advocate,   209,  and  au-  5   Hill.   291;    Sawyer  v.  Chambers,  43 

thorities cited  in  note  1;  Darby  v.Ouse-  Barb.  622;  Willev  v.  State.  52  Ind.  (.21. 

ley.  36  Eng.  L.  &  Eq.  518525.     In  the  B  Battishill    v.    Humphrey,   64   Mich. 

case  last  cited  the  observations  of  Baron  494,   513,   31    N.  W.   Rep.  894.     In  the 


618  ERROR    I\  JUDICIAL   PROCEEDINGS. 

narrow  the  scope  of  the  opening  statement  to  deny  counsel 
the  privilege  of  making  it  full  and  clear  enough  to  enable  the 
jury  to  understand  just  what  they  were  called  upon  to  try,  and, 
on  the  other  hand,  it  would  be  a  useless  waste  of  time  and  a 
means  of  producing  confusion  to  allow  counsel  to  give  minute 
and  specific  details  of  the  case.  Remarks  made  by  the  judge 
during  the  progress  of  the  trial,  if  material  and  improper,  may, 
when  properly  excepted  to  and  brought  into  the  record,  con- 
stitute prejudicial  and  available  error,  although  they  may  not, 
in  strictness,  be  instructions  as  to  the  law  of  the  case.1  It  is 
obvious  that  jurors  may  be  influenced  as  effectively  by  the  re- 
marks of  the  judge  during  the  progress  of  the  trial  as  by  formal 
instructions,  and  where  such  remarks  are  likely  to  exert  a  prej- 
udicial influence  upon  the  jury  they  may  be  made  available  for 
the  reversal  of  the  judgment,  but  where  the  remarks  are  not 
likely  to  have  that  effect  there  is  no  available  error,  although 
the  statements  of  the  court  were  improper.2  It  has  been  held 
that  error  in  making  an  improper  remark  may  be  cured  by  in- 
structing the  jury  to  disregard  it,3  but  it  is  doubtful  whether 
this  doctrine  is  sound  ;  at  all  events,  it  is  one  to  be  carefully 
limited.  It  is  proper  for  the  court  to  reinstruct  the  jury  when 
necessary.4  but  it  is  prejudicial  error  to  go  into  the  jury  room 

case  cited  it  was  held   prejudicial  error  duty  of  the  court  to  suppress  any  dem- 

to  refuse  to  permit  counsel  in  an  open-  onstration  that  may  work    harm  to  a 

ing  statement  for  the  defense  to  make  party.     Woolfolk  v.  State,  Si  Ga.  551,  8 

use  of  a  diagram  that   was  afterwards  S.  E.  Rep.  724.     If  a  party  by  miscon- 

properly  admitted  in  evidence.  duct  calls  forth  a  remark  that  injures 

1  Mcintosh  v.    Mcintosh,    79    Mich,  him  he  can  not  complain.     Bowden  v. 

198,  41   N.  W.  Rep.  592;    Chesapeake,  Bailes,  101  N.  C.  612,  S  S.  E.  Rep.  342; 

etc.,  Co.  v.   Barlow,  S6  Tenn.  537,  8  S.  Krapp  v.   Hauer,  38  Kan.  430,  16  Pac. 

YV.  Rep.  147;  Phenix  Ins.  Co.  v.  Moog,  Rep.  702;  Chicago,  etc.,  Co.  i'.  Holland, 

81  Ala.  335,  1  So.  Rep.  108;  Whitelaw  122  111.  461,  13  N.  E,  Rep.  145. 
r. Whitelaw,  S3  Va.  40,  1  S.  E.  Rep.  407;         s  People  v.  Northey,  77  Cal.  618,  19 

State  w.Tickel,  13  Nev.  502, 508;  People  Pac.  Rep.  S65. 

v    Bonds,   1    Nev.  33,36;    State  v.  Ah        *  Hogg  v.  State,  7  Ind.  551;  Colum- 

Tong,   7    Nev.    14S,    152;    McMinn    v.  bus,  etc.,   Co.   v.   Powell,  40    Ind.  37; 

Whelan,  27  Cal.  300;  Sparks  v.  State,  Farley  v.  State,  57  Ind.  331;  Philips  v. 

59   Ala.  82,  87;  Terre   Haute,  etc.,  Co.  New    York,   etc.,    Co.,   53     Hun.    634, 

v.  Jackson,  Si  Ind.  19.  6    N.    Y.    Supp.    621;     Wilkinson    v. 

*  Bushnell  v .  Crooke,  etc.,  Co.,  12  Col.  St.    Louis,     etc..    Co.,    102    Mo.    130, 

247, 21  Pac.Rep.  931;  Favors  v. Johnson,  14    S.    W.    Rep.    177.      Communica- 

79  Ga.  553.  4  S.  E.  Rep.  925.     It  is  the  tions    between   court    and    jury  should 


PREJUDICIAL   ERROR. 


619 


and  there  read  instructions  in  the  absence  of  parties  and  coun- 
sel.1 In  this  State  the  general  rule  is  that  it  is  prejudicial  error 
to  permit  the  jury  to  take  instruments  of  evidence  with  them 
when  they  retire  for  deliberation,-  but  elsewhere  there  is  much 
diversity  of  opinion  upon  the  question.3  It  has,  however,  been 
held  that  the  rule  does  not  apply  to  the  pleadings  in  the  case, 
nor  to  instruments  forming  necessary  and  proper  exhibits  to 
the  pleadings,1  nor  does  the  rule  apply  where  it  affirmatively 
appears  that  the  jury  did  not  make  any  use  of  the  papers  taken 
by  them  to  their  consultation  room.5  The  general  rule  is  that 
it  is  improper  to  permit  jurors  to  hold  communications  with  par- 
ties or  third  persons/'  and  that  it  is  error  to  allow  an  officer  to 


be  in  presence  of  parties  or  counsel. 
Sargent  v.  Roberts,  i  Pick.  337;  Ho- 
berg  v.  State,  3  Minn.  262;  Watertown 
Bank  v.  Mix,  51  N.  Y.  558;  Read  v. 
Cambridge,  124  Mass.  567;  State  v.  Pat- 
terson, 45  Vt.  30S.  Where  parties  con- 
sent to  sending  instructions  to  the  jury 
room  there  is  no  error.  See  Parmalee 
v.  Sloan,  37  Ind.469;  Chouteau  v.  Jupi- 
ter Iron  Works,  94  Mo.  3SS,  7  S.  W. 
Rep.  467. 

1  Fish  v.  Smith,  12  Ind.  563;  Smith 
v.  McMillen,  19  Ind.  391 ;  Reilly  v.  Bader 
46  Minn.  212,  48  N.  W.  Rep.  909;  Hall 
v.  State,  8  Ind.  439;  Moody  v.  Pomeroy, 
4  Denio,  115;  Taylor  v.  Betsford,  13 
Johns.  487;  Kirk  v.  State,  14  Ohio,  511; 
Benson  v.  Clark,  1  Cow.  258;  O'Con- 
nor v.  Guthrie,  11  Iowa,  So;  Crabtree 
v.  Hagenbaugh,  23  111.  349;  State  v. 
Garrand,  5  Ore.  216;  Bunn  v-  Croule, 
10  Johns.  239. 

2  Chance  v.  Indianapolis,  etc.,  Co.,  ^2 
Ind.  472;  Eden  v.  Lingenfelter,  39  Ind. 
19;  Lotz  v.  Briggs,  50  Ind.  34C),  34S; 
Nichols  v.  State,  65  Ind.  512,  521.  In 
the  case  last  cited  it  was  said:  "  We 
regard  it  as  settled  law  in  this  State 
that  it  is  error  to  permit,  over  the  ob- 
jections and  exceptions  of  the  opposite 
party,  items  of  documentary  evidence 
to  be  taken  to  their  consultation  room 
by  the  jury."  See  Cheek  v.  State,  35 
Ind.  492;  Newkirk  p.  State,  27  Ind.  1. 


3  Tabor  e.Judd,  62  N.  H.  28S;  Blaz- 
inski  v.  Perkins,  77  Wis.  9,  45  N.  W. 
Rep.  947;  Bulen  v.  Granger,  63  Mich. 
311,  29  N.  W.  Rep.  71S;  Farnum  v. 
Pitcher,  151  Mass.  470,  24  N.  E.  Rep. 
590;  Leonard  v.  Armstrong,  73  Mich. 
577;  State  v-  Tompkins,  71  Mo.  613; 
Mullen  v.  Morris,  2  Pa.  St.  85;  Will- 
iams v-  Thomas,  7S  N.  C.  47;  Burton 
v.  Wilkes,  66  N.  C.  604;  Kalamazoo, 
etc.,  Co.  v.  McAlister,  36  Mich.  327; 
Rainforth  v.  People,  61  111.  365;  Watson 
v.  Walker,  23  N.  H.  471,  497;  O'Neall 
v.  Calhoun,  67  111.  219;  Harriman  r. 
Wilkins,  20  Me.  93;  Jessup  v.  Eldridge, 
Coxe  (N.  J.),  401;  People  v.  Page,  1 
Idaho,  102,  1 89;  In  re  Foster's  Will. 
34  Mich.  21;  Moore  v.  McDonald,  68 
Md.  321,  12  Atl.  Rep.  117;  Cavanaugh 
v.  Buehler,  120  Pa.  St.  441,  14  Atl.  Rep. 
391;  Summers  v.  Greathouse,  S7  Ind. 
205,  207. 

4  Snyder  v.  Braden,  5S  Ind.  143;  Col- 
lins v.  Frost,  54  Ind.  242;  Shulse  v.  Mc- 
Williams,  104  Ind.  512. 

5  Beresch  ©.  State,  13  Ind.  434.  See 
Achcv  v.  State,  64  Ind.  56,63;  Matlock 
V.  Todd,  19  Ind.  130,  132;  Bell  v.  Car- 
lev.  3  Ind.  577. 

6  Barlow  v.  State,  2  Blackf.  114;  Cat- 
.erlin  V.  City  of  Frankfort,  S7  Ind.  45; 
l'rie>t  v.  State,  68  Ind.  569;  Dower  :. 
Church,  21  W.  Va.  23,  55;  March  r\ 
State,  44  Texas,  64, 82;  People  t>.B 


620 


ERROR   IN    JUDICIAL   PROCEEDINGS. 


remain  in  the  consultation  room  during  the  deliberations  of  the 
jury,1  but  the  error  is  not  always  available  for  the  reversal  of  the 
judgment,  for  it  may  be  that  it  was  made  to  appear  that  no 
harm  resulted  to  the  party  from  the  wrongful  conduct  of  the 
jurors,  officers  or  third  persons.2  In  a  former  paragraph3  we 
stated  the  general  rule  to  be  that  unless  it  affirmatively  appears 
that  the  misconduct  was  probably  prejudicial  there  is  no  avail- 
able error,  and  that  is  the  general  rule,  but  the  effect  of  the  mis- 
conduct may  be  inferred  from  the  character  of  the  acts.4 

;j  G72.    Misconduct  of  Parties  and  Counsel — One  of  the  sources 
of  prejudicial  error  is  found  in  the  behavior  of  counsel    and 


20  Cal.  432;  Epps  v.  State,  19  Ga.  102; 
Martin  v.  People,  54  111.  225;  Poole  v. 
Chicago,  etc.,  Co.,  2  McCrary,  251; 
Hamilton  v.  Pease,  38  Conn.  115;  Caw 
v.  People,  3  Neb.  357;  Hager  v.  Hager, 
38  Barb.  92;  McKenzie  v.  State,  26 
Ark.  334;  Hill  v.  State,  64  Ga.  453; 
State  v.  Circuit,  31  N.  J.L.249;  Louis- 
ville, etc.,  Co.  V.  Hendricks,  12S  Ind. 
462, 2S  N.  E.  Rep.  58;  Kennedy  v.  Holla- 
day,  105  Mo.  24,  16  S.  W.  Rep.  6SS. 

1  Houk  v.  Allen,  126  Ind.  56S;  Rick- 
ard  v.  State,  74  Ind.  275;  Fitzgerald  v. 
Goff,  99  Ind.  2S;  Clayton  v.  State,  100 
Ind.  201 ;  McClary  v.  State,  75  Ind.  260. 
In  Doles  v.  State,  97  Ind.  $$$,  564,  it  is 
held  that  counter  affidavits  may  show 
that  no  harm  resulted  to  the  complain- 
ing party. 

2  Doles  v.  State,  97  Ind.  555;  Fitz- 
gerald v.  Goff,  99  Ind.  28;  Clayton  v. 
State,  100  Ind.  201;  De  Hart  v.  Etnire, 
121  Ind.  242;  Cooper  v.  State,  120  Ind. 
377.  In  Waterman  v.  State,  116  Ind. 
51,  52,  it  was  said:  "Ordinarily,  the 
unexplained  presence  of  the  bailiff  in 
the  jury  room  during  the  deliberations 
of  the  jury  is  such  misconduct  as 
vitiates  their  verdict.  In  the  presenl 
case  the  affidavit  of  appellants'  counsel 
discloses  the  fact  that  counsel  saw.  the 
bailiff  £0  into  the  jury  room  without 
any    invitation  or   signal    from   within 


and  that  this  was  repeated  again  and 
again  in  his  presence  without  protest 
or  objection,  although  the  counsel  was 
present  in  court  at  the  time.  Miscon- 
duct of  any  one  connected  with  the 
trial,  which  is  known  to  and  acquiesced 
in  without  objection  by  the  party  or 
his  counsel,  even  though  it  be  of  a  char- 
acter which  might  otherwise  vitiate  the 
verdict,  can  not  afterwards  be  made 
available  for  the  purpose  of  setting 
aside  the  verdict."  Hill  V .  Corcoran,  15 
Col.  270,  25  Pac.  Rep.  171;  Bledsoe  v. 
Bledsoe  (Ky.),  1  S.  W.  Rep.  10;  Raul 
v.  Brown  (R.  I.),  20  Atl.  Rep.  10;  St. 
Paul,  etc.,  Co.  v.  Kelly,  43  Kan.  741,  23 
Pac.  Rep.  1046;  Dozenback  v.  Raymer, 
13  Col.  451,  22  Pac.  Rep.  7S7. 

3  Ante,  §  594. 

*  Atchison,  etc.,  Co.  v.  Bayes,  42 
Kan.  609,  22  Pac.  Rep.  741;  Johnson 
v.  Tyler,  1  Ind.  App.  387,  27  N.  E.  Rep. 
643;  Welch  v.  Taverner,  7S  Iowa,  207, 
42  N.  W.  Rep.  650;  Vose  v.  Muller,  23 
Neb.  171.  36  N.  W.  Rep.  583;  Griffin 
v.  Harriman,  74  Iowa,  436,  3S  N.  W. 
Rep.  139;  Repath  v.  Walker,  13  Col. 
109,  21  Pac.  Rep.  917;  Kruidener  v. 
Shields,  77  Iowa,  504,  42  N.  W.  Rep 
432;  Cottle  v.  Cottle,  6  Greenl.  140,  S. 
C.  19  Am.  Dec.  200;  Phillipsburgh  Bank 
v.  Fulmer,  2  Vroom  (N.J.),  52,  S.  C.86 
Am    Dec.  193. 


PREJI   DICIAL    ERROR. 


621 


parties.  The  misconduct  of  a  party  or  his  counsel  may  be 
such  as  to  require  a  reversal  of  the  judgment.  It  is  not,  how- 
ever, every  departure  from  the  rules  of  propriety  that  will  con- 
stitute available  error,  for  two  things  must  concur — misconduct 
and  probable  injury  to  the  opposite  party.  The  misconduct 
may,  of  course,  be  such  as  to  authorize  the  inference  that  in- 
jury resulted,  and  where  this  is  so,  injury  will  be  presumed. 
Where  parties  attempt  to  unduly  influence  the  jury  or  a  juror, 
error  of  a  prejudicial  nature  is  generally  inferred,  and  rightly 
so,  for  the  long  established  rule  is  that  "presumptions  go 
against  the  wrong-doer."  '  A  party  is  guilty  of  misconduct 
constituting  prejudicial  error  if  he  employs  illegal  means  to 
gain  an  advantage  in  the  selection  of  jurors.2  Tampering  with 
witnesses  is  such  a  wrong  as  constitutes  available  error  wher- 
ever it  appears  that  there  was  any  corrupt  or  illegal  means 
employed  to  influence  the  testimony  of  the  witness.3     Miscon- 

1  Hilton  v.  Southwick,  17  Me.  303,  S.  part  of  the  prevailing  party  there  is  no 

C.  35  Am.  Dec.  253.     In  the  case  cited  conflict  in  the  authorities.    In  such  cases 

it    was   said:     "If  there  appeared   the  the  court  will  set  aside  the  verdict  with- 

least  attempt  of  the  plaintiff  to  seek  out  any  inquiry  as  to  what  effect  the 

and    influence   the    juror,    the    verdict  misconduct    had    upon     the    jury.      It 

■would  be  set  aside."     Other  courts  ex-  should  be  firmly  held  by  the  courts  and 

press  the  general  doctrine  thus:     "For  known  to  all  litigants  as  an  inflexible 

any,  even  the  least  Intermeddling  with  a  rule  of  law,  that  no  party  to  a  suit  can 

juror,  the    verdict    will    always   be   set  profit  by  his  own  misconduct,  and  that 

aside."  Knight  p.  Freeport,  13  Mass. 218;  a  verdict  rendered  under  such  circum- 

Amherst©.  Hadley,  1  Pick. 38;    Allen©,  stances   will    be   instantly    set    aside." 

Aldrich,  29  N.  II.  63;  Tucker  p.  South  The  court  cited    Davis  v.  State.  35  Ind. 

Kingstown,  5  R.  1. 558;  Cottle  v.  Cottle,  490.      See,    upon    the   general    subject, 

6  Greenl.  140,  S.  C.  19  Am.  Dec.  200;  Johnson   v-  Hobart,  45    Vc<.\.   Rep.   542; 

Walker  v.  Walker,  11  Ga.  203;     Mad-  Tabor  v.  Judd,  62  N.  H.  288. 
den  v.  State,  1    Kan.  340;    Studley  v.        8  Boyce  v.  Aubuchon,  34  Mo.  A.pp. 

Hall,  22   Me.  19S;    Perry  v.  Bailey,  12  315,  322,  distinguishing  O'Brien  v.  Vul- 

Kan.  539;    Phillipsburgh   Bank  v.  Ful-  can  Iron  Works,  7  Mo.  App. 257;  State 

mer,  31  N.  J.  L.  52;     Pittsburgh,  etc.,  ©.Gleason,  s^  Mo.  582. 
Co.  v-  Porter,  32  Ohio  St.  32S;   Pelham         3  The   general    rule   is   recognized   in 

v.   Page,    6    Ark.   535.      In    Huston    v.  Beeks  v.  Odom,  70  Texas.  [83,  7  S.  W. 

Vail.  51    Ind.  299,   304,  the    court    said:  Rep.  702.  but    it  was   there    held    that  if 

"  The  authorities  are  not  uniform  where  it  clearly  appeared  that  the  verdict  was 

the  alleged  misconduct  is  on   the  part  right   the  judgment    would   not  be   re- 

of  the  persons  not  parties  to  the  suit,  versed,  the  court  saying:  "Weareofthe 

as  to  whether  it  must  be  further  shown  opinion,  however,  where  a  witness  testi- 

that  the  verdict  was  thereby   affected,  ties  under  such  an  agreement,  and  it  is 

but    where   the    misconduct    is    on   the  not  made  known  to  the  court  and  jury 


(J  2 2 


ERROR   IN  JUDICIAL  PROCEED] 


duct  of  a  party  in  suppressing  evidence,  or  in  preventing  the 
attendance  of  a  witness  by  trickery  or  by  other  illegal  means, 
may  constitute  prejudicial  error.1  The  misconduct  of  counsel 
in  the  management  of  a  particular  case  is  as  to  that  case  the 
misconduct  of  the  client.  If  counsel's  violation  of  the  rules 
of  law  or  procedure  is  of  such  a  material  character  as  to  prob- 
ably operate  to  the  injury  of  the  opposite  party  error  may  be 
successfully  alleged  in  cases  where  an  objection  is  appropriately 
saved  and  presented.  If  counsel  go  entirely  outside  of  the 
evidence  in  argument  and  bring  into  the  case  improper  matters 
of  a  clearly  prejudicial  nature,  the  error  may  be  made  available 
for  a  reversal  of  the  judgment.2  But  errors  of  inference  either 
as  to  matters  of  law  or  of  fact  are  not  such  as  will  be  available 
for  the  reversal  of  the  judgment  from  which  the  appeal  is  prose- 
cuted.3    Where  the  opposite  counsel  provokes  the  misconduct 


trvingthe  case,  that  a  new  trial  should  be 
granted,  unless,  in  view  of  all  the  other 
evidence  in  the  cause,  no  other  verdict 
than  that  found  could  have  been  legally 
reached.  Such  agreements  are  likely 
to  lead  to  corruption,  are  contrary  to 
public  policy,  and  must  meet  the  con- 
demnation of  all  fair  minded  men, 
whether  the  agreement  relates  to  evi- 
dence to  be  given  as  an  expert  or  not." 
In  so  far  as  the  case  from  which  we 
have  quoted  states  the  general  rule,  we 
believe  it  correct,  but  we  think  it  wrong 
in  holding  that  the  appellate  tribunal 
will  look  to  the  evidence  to  ascertain 
whether  injury  resulted.  Where  there 
is  a  corrupt  agreement  with  a  witness 
as  to  a  material  point  there  should  not 
be,  as  we  believe,  any  scrutiny  of  the 
other  evidence. 

1  Davis  v.  Daveril,  u  Mod.  141;  Mont- 
sesson  v.  Randle,  Buller,  N.  P.  328. 

2  Schlotter  v.  State,  i27lnd.493;  Ru- 
dolph a.Vandwerlen,  92  Ind.  34;  School 
Town  of  Rochester  v.  Shaw,  100  Ind. 
26S;  Bessette  v.  State,  101  Ind.  85; 
Brow  v.  State,  103  Ind.  133;  Campbell 
v.  Maher,  105  Ind.  383;  Nelson  ?.  Welch, 
115  Ind.  270;    Troyer  v.  State,  115  Ind. 


331;  Staser  v.  Hogan,  120  Ind.  207: 
Kinnaman  v.  Kinnaman,  71  Ind.  417; 
St.  Louis,  etc.,  Co.  v.  Myrtle,  51  Ind. 
566;  Fletcher  v.  State,  49  Ind.  124; 
Ferguson  v.  State,  49  Ind.  33;  Tucker 
v.  Henniker,  41  N.  H.  317;  Nalley  v. 
State,  28  Texas  App.  3S7,  13  S.W.  Rep. 
670;  Cook  v.  Doud,  14  Col.  483,  23  Pac. 
Rep.  906;  Perkins  v.  Burley,  64  N.  H. 
524,  15  Atl.  Rep.  21;  Henry  v.  Sioux 
City,  etc.,  Co.,  70  la.  233,  30  N.W.  Rep. 
630;  Commercial  Fire  Ins.  Co. v.  Allen, 
80  Ala.  571,  1  So.  Rep.  202;  Huckell  v. 
McCoy,  38  Kan.  53,  15  Pac.  Rep.  S70. 
If  counsel  comment  upon  the  fact  that  a 
change  of  venue  has  been  taken  and  the 
court,  where  timely  objection  is  inter- 
posed, declines  to  interfere  there  is 
prejudicial  error.  Farman  v.  Lauman, 
73  Ind.  568;  Paulman  v.  Claycomb,  75 
Ind.  64;   Worley  v.  Moore,  97  Ind.  15. 

3  Sage  v.  State,  127  Ind.  15,  29;  War- 
ner v.  State,  114  Ind.  137;  Proctor  %,. 
DeCamp,  S3  Ind.  559;  Combs  v.  State, 
75  Ind.  215;  Goff  v.  Scott,  126  Ind.  200; 
Mosiero.  Stoll,  11c  Ind.  244;  Brower 
v.  Goodyer,  88  Ind.  572;  Carter  v.  Car- 
ter, 101  Ind.  450.  Mere  immaterial  re- 
marks will    not   constitute   prejudicial 


PREJUDICIAL  ERROR. 


623 


of  his  adversary  and  opens  the  door  to  improper  argument  he 
can  not,  as  a  general  rule,  successfully  complain  of  the  error 
which  he  himself  invited.1  If,  however,  the  counsel  should 
go  further  than  the  wrong  of  the  opposite  party  invited 
him  to  go  it  is  probable  that,  if  his  misconduct  is  material  and 
prejudicial,  the  court  would  feel  bound  to  set  aside  the  verdict. 
Where  the  court  promptly  and  decisively  calls  counsel  to  order 
and  fully  and  clearly  instructs  the  jury  to  disregard  the  im- 
proper remarks  there  is  ordinarily  no  available  error,2  but  coun- 
sel must  be  promptly  checked  and  the  effect  of  the  improper 
statements  effectively  dissipated.3  Permitting  counsel  in  civil 
cases,  over  the  objection  of  the  opposite  party,  to  read  from 
legal  treatises  is,  in  general,  prejudicial  error.4  Improper  re- 
marks by  counsel  may,  if  objection  is  appropriately  interposed 
and  exception  properly  reserved,  be  available  for  the  reversal 
of  the  judgment  in  cases  where  they  are  material  and  probably 
injurious  to  the  complaining  party.5 

§  673.   Interrogatories  to  the  Jury — It  is  the  duty  of  the  trial 
court  to  submit  to  the  jury  interrogatories   that  are   properly 


error.  City  of  La  Fayette  v-  Weaver, 
92  Ind.  477;  Buscherr.  Scully,  107  Ind. 
246;  Boyle  v.  State,  105  Ind.  469; 
Shular  v.  State,  105  Ind.  2S9;  Epps  v. 
State,  102  Ind.  539:  Anderson  v.  State, 
104  Ind.  467;  Morrison  v.  State,  76  Ind. 
335;  Chicago,  etc.,  Co.  v.  Sullivan  (111.), 
17  X.  E.  Rep.  460. 

1  Miner  v.  Louman,  66  Mich.  530,  ^ 
X.  W.  Rep.  S36;  Willis  v.  McNatl 
7;  Tex.  69,  12  S.W.Rep.  47S.  See,  gen- 
erally, \VTatson  v.  St.  Paul,  etc.,  Co. 
42  Minn.  46,  43  X.W.  Rep.  904;  Galves- 
ton, etc.,  Co.  v.  Cooper,  70  Texas.  67; 
Jackson  v.  Harby,  70  Texas,  410;  George 
v.  Swafford,  75  Iowa,  491;  Chicago, 
etc.,  Co.  v.  Fietsam,  123  111.  518;  Drew 
v.  State,  124  Ind.  9,  23  N.  E.  Rep.  109S; 
Huckshold  v.  St.  Louis,  etc.,  Co.,  90  Mo. 
54S,  2  S.  W.  Rep.  794. 

5  Kern  0.  Bridwell,  1  [9  Ind.  226,  21  N. 
E.  Rep.  664;  City  of  Evansville  0.  Wil- 
ter,  S6  Ind.414;  People  v.  Scharnweber, 


119  111.  445,  10  N.  E.  Rep.  16;  Little 
Rock,  etc.,  Co.  v.  Cavenesse,  4S  Ark. 
106,  2  S.  W.  Rep.  505;  Frederick^  p. 
Judah,  73  Cal.  604,  15  Pac.  Rep.  305; 
Jackson  v.  Harly,  70  Tex.  410,  S  S.  W. 
Rep.  71. 

3  Hunt  v.  State,  2S  Texa-  App.  149, 
12  S.  W.  Rep.  737;  State  v.  Tennison, 
42  Kan.  330.  22  Pac.  Rep.  429;  Augusta, 
etc.,  Co.  v.  Randall,  85  Ga.  297,  1 1  S.  E. 
Rep.  706. 

4  Porter  v.  Choen,  60  Ind.  338;  John- 
son x'.  Culver,  in>  Iiul.  27V  House  :-. 
McKinney.  54  Ind.  240;  Scott  v.  Scott, 
124  [nd.  66;  Berrj  ;.  Mate,  ioGa. 511; 
Wightman  v.  City  of  Providence,  1 
Clifford  C.  C.  524;  Rolfe  v.  Rumford, 
66  Me.  564;  People  ;•.  Anderson,  44 
Cal.  65.  See  Work  of  the  Advocate, 
500-505. 

5  Baldwin  v.  Grand  Trunk  Ry.Co.,64 
X.  H.  596,  15  Atl.  Rep.  411;  Shorbt). 
Kinzie.  100  Ind.  429. 


624 


ERROR  IN   JUDICIAL  PROCEEDINGS. 


framed,  requested  at  the  proper  time  and  in  the  appropriate 
mode.1  A  refusal  to  submit  such  interrogatories  is  generally 
prejudicial  error,  but  there  is  no  material  error  unless  the  in- 
terrogatories are  properly  framed  and  their  submission  oppor- 
tunely and  appropriately  requested.2  The  court  can  not  with- 
draw from  the  jury  proper  and  material  interrogatories  which 
have  been  duly  submitted,3  but  it  may  withdraw  improper  in- 
terrogatories.1 If  interrogatories  are  withdrawn  and  the  record 
does  not  affirmatively  show  that  they  were  such  as  the  party 
had  a  right  to  have  answered,  the  presumption  on  appeal  will 
be  that  they  were  such  interrogatories  as  might  rightfully  be 


1  Boots  v.  Griffiths,  97  Ind.  241 ;  Will- 
iamson ^.Yingling,  So  Ind.  379;  Miller 
v.  White  River  School  Tp.,  101  Ind.  503; 
Clegg  v.  Waterbury,  S8  Ind.  21 ;  Buntin 
v.  Rose.  16  Ind.  209;  Sage  v.  Brown,  34 
Ind.  464;  Maxwell  v.  Boyne,  36  Ind. 
120;  Reeves  v.  Plough,  41  Ind.  204; 
Summers  v.  Greathouse,  87  Ind.  205; 
American  Central  Ins.  Co.  v.  Hatha- 
way, 43  Kan.  399,  23  Pac.  Rep.  428; 
Wichita,  etc.,  Co.t>.  Fecheimer,  36  Kan. 
45,  12  Pac.  Rep.  362;  Clark  a.  Missouri, 
etc.,  Co.,  35  Kan.  350,  11  Pac.  Rep.  134; 
City  of  Wyandotte  v.  Gibson,  25  Kan. 
236;  Farnsworth  v.  Coots,  46  Mich.  117. 
Where  the  statute  makes  it  discretion- 
ary with  the  court  to  submit  or  refuse 
to  submit  interrogatories  the  rule  stated 
in  the  text  does  not  apply.  Lufkins  v. 
Collins  (Idaho),  10  Pac.  Rep.  300;  Mc- 
Lean v.  Burbank,  12  Minn.  530;  Swift 
v.  Mulkey,  14  Oregon,  59,  12  Pac.  Rep. 
76;  Cole  v.  Crawford,  69  Texas,  124,  5 
S.  W.  Rep.  646. 

2  See  "  Request  for  the  submission  of 
special  interrogatories  to  the  jury,"  and 
"  Special  interrogatories  to  jury — What 
rulings  are  harmless  although  errone- 
ous." See,  also,  McMahon  v.  Sankey, 
133  111.  636,  24  N.  E.  Rep.  1027.  As  to 
w  lun  objection  must  be  made,see  Brook- 
er  o.Weber,  41  Ind.  426;  Richardson  v. 
Weare,  62  N".  II.  So.     What  interroga- 


tories may  be  refused :  Thomas  v.  Schee, 
So  la.  237,  49  N.  W.  Rep.  539;  Jackson 
v.  German  Ins.  Co.,  27  Mo.  App.  <>:; 
Murdock  v.  Clarke,  90  Cal.  427,  24  Pac. 
Rep.  272;  Des  Moines,  etc.,  Co.  v.  Polk 
County,  etc.,  Co.  (Iowa),  45  N.  W.  Rep. 
773;  Chicago,  etc.,  Co.  v.  Dunleary,  27 
111.  App.  438,  S.  C.  129  111.  132,  22  N. 
E.  Rep.  151.  See,  generally,  Waymire 
V.  Lank,  121  Ind.  1;  Bowen  v.  Swander, 
121  Ind.  164;  Seekell  v.  Norman,  78 
Iowa,  254;  Cleveland,  etc.,  Co.  v.  As- 
bury,  120  Ind.  289;  Toledo,  etc.,  Co.  v. 
Rathmann,  7S  Iowa,  28S;  Chicago,  etc., 
Co.  v.  Burger,  124  Ind.  275,  279,  24  N. 
E.  Rep.  981.  Where  objection  is  made 
to  part  of  the  interrogatories  it  will  he 
presumed  on  appeal  that  the  submission 
was  by  consent.  Fisk  v.  Chicago,  etc., 
Co.  (Iowa),  4S  N.  W.  Rep.  10S1;  Fitch 
v.  Armour,  14  N.  Y.  Supp.  319. 

3  Summers  v.  Greathouse,  S7  Ind.  205; 
Duestenberg  v.  State,  116  Ind.  141,  cit- 
ing, among  others,  the  following  cases: 
Wood  v.  Ostram,  29  Ind.  177;  Noakes  v. 
Morey,  30  Ind.  103;  Otter  Creek,  etc., 
Co.  v.  Raney,  34  Ind.  329;  Maxwell  v. 
Boyne,  36  Ind.  120;  Peters  v-  Lane,  55 
Ind.  391. 

4  Continental  Ins.  Co.  v.  Yung,  113 
Ind.  159;  Groscap  v.  Rainier,  in  Ind. 
361;   Dawson  v-  Shirk,  102  Ind.  1S4,  18S. 


PREJUDICIAL   ERROR. 


withdrawn.1  It  is  error  to  instruct  the  jury  that  answers  need 
not  be  returned  to  the  interrogatories  in  the  event  that  a  gen- 
eral verdict  is  rendered  in  favor  of  the  party  by  whom  the  in- 
terrogatories are  asked,  for  it  is  the  imperative  duty  of  the 
court,  when  proper  interrogatories  are  duly  asked,  to  instruct 
the  jury  to  answer  them  in  the  event  that  they  return  a  general 
verdict.2  In  cases  where  the  court,  as  of  right,  ultimately  de- 
cides all  questions,  both  of  law  and  fact,  as  in  suits  in  equity, 
the  matter  of  submitting  interrogatories  to  the  jury  is  neces- 
sarily one  of  discretion,  inasmuch  as  the  findings  of  the  jury 
in  such  instances  are  merely  advisory,  and  may  be  adopted  or 
rejected  as  the  court  sees  fit.  No  prejudicial  error  can  in  such 
cases  arise  out  of  rulings  in  submitting  or  refusing  to  submit 
interrogatories  to  the  jury,3  although   material  error  may,  of 


1  Groscap  v.  Rainier,  in  Ind.  361, 
368,  citing  Myers  v.  Murphy,  Co  Ind. 
282;  Foster  v.  Ward,  75  Ind.  594;  Frank 
r.  Grimes,  105  Ind.  346. 

2  Pitzer  v.  Indianapolis,  etc.,  Co.,  80 
Ind.  569;  Lake  Erie,  etc.,  Co.  v.  Fix,SS 
Ind.  3S1,  3S3;  Ogle  v.  Dill,  61  Ind.  43S, 
443.  The  object  of  the  statute  provid- 
ing for  the  submission  of  interrogato- 
ries to  the  jury  is  well  stated  by  Casso- 
day,  J.,  in  Ryan  v.  Rockford  Ins.  Co., 
77  Wis.  611,  615.  We  quote  from  the 
opinion  in  that  case  the  following: 
"The  purpose  of  thus  submitting  par- 
ticular controverted  questions  of  fact  is 
to  secure  a  direct  answer  free  from  any 
bias  or  prejudice  in  favor  of  or  against 
either  party.  It  is  a  wise  provision  in 
certain  cases  when  properly  adminis- 
tered. It  has  often  been  demonstrated 
in  the  trial  of  cause-  that  the  non-ex- 
pert juryman  is  more  liable  than  the 
experienced  lawyer  or  judge  to  be  led 
away  from  the  material  issues  of  fact 
involved  by  some  collateral  circum- 
stance of  little  or  no  significance,  or  by 
sympathy,  bias  or  prejudice,  and  hence, 
it  is  common  practice  for  courts  in  the 
submission  of  such  particular  questions 
and  special  verdicts  to  charge  the  jury, 

40 


in  effect,  that  they  have  nothing  to  do 
with,  and  must  not  consider,  the  effect 
which  their  answers  may  have  upon  the 
controvery  or  the  parties."  In  Morrow 
v.  Commissioners,  21  Kan.  484,  503,  the 
court  said:  "The  main  object  of  the 
law  is  to  bring  out  the  various  facts 
separately  in  order  to  enable  the  court 
to  apply  the  law  correctly  and  to  guard 
against  any  mi-application  of  the  law 
by  the  jury.  It  is  a  matter  of  common 
knowledge,  that  a  jury,  influenced  by  a 
general  feeling  that  one  side  ought  to 
recover,  will  bring  in  a  verdict  accord- 
inglv  where  at  the  same  time  it  will  not 
find  a  certain  fact  to  have  been  proved, 
which  in  law  is  an  insuperable  barrier 
to  a  recovery  in  accord  with  the  general 
verdict."  Much  to  the  same  effect  are 
the  cases  of  Buntin  p.  Rose.  16  Ind  ; 
Davis  x'-  Town  of  Farmington.  42  Wis. 
42^;  Durfee  v.  Abbott,  50  Mich.  479; 
Ilendrickson  v.  Walker,  t,2  Mich.  68. 
Partridge  r.  Gilbert.  3  Duer.  iN|. 
Dempsey    V.  Mayor.  10  Daly.  417. 

3  Ikerd  rr.  Beavers,  106  Ind.4S3;  Plat- 
ter -•.   Hoard.    103   Ind.  360;     Koo 
Blanton  (Ind.).  27  N.  E.  Rep.  334;  Rar- 
iden  v.  Rariden  (Ind.),  28  N.  E.  Rep. 
701;  Jennings  :■.  Durham,  101  Ind.  391; 


626 


ERROR   IN    JUDICIAL  PROCEEDINGS. 


course,  exist  if  the  ultimate  decision  is  rendered  erroneous  by 
the  action  of  the  court  in  finally  determining  questions  of  fact 
or  law.  There  is,  we  may  say  in  concluding  this  topic,  conflict 
upon  the  question  whether  it  is  competent  for  the  jury  to  an- 
swer that  there  is  no  evidence,  our  court  holding  that  they  may 
do  so,1  but  other  courts  hold  a  different  doctrine.2 


Pence  v.  Garrison.  93  Ind.  345;  Swales 
v.  Grubbs,  126  Ind.  106;  Sheets  v.  Bray, 
125  Ind.  I,!),  PriHinian  v.  Mendenhall, 
[20  Ind.  279:  Martin  v.  Martin,  11S 
Ind.  227;  Farmers'  Bank  v.  Butterfield, 
100  Ind.  229;  Ketcham  v.  Brazil,  etc., 
Co.,  SS  Ind.  515;  Israel  v.  Jackson,  93 
Ind.  543;  Towns  v.  Smith,  115  Ind^So; 
Taylor  v.  Collins,  51  Wis.  123;  Will  of 
Carroll,  50  Wis.  437. 

1  Dockerty  v.  Hutson,  125  Ind.  102; 
Cleveland,  etc.,  Co.  f.  Asbury,  120  Ind. 
2S9;  Mitchell  v.  Robinson,  80  Ind.  2S1, 
S.  C.  41  Am.  Rep.Si2;  Louisville,  etc., 
Co.  v.  Thompson,  107  Ind.  442;  Max- 
well v.  Boyne,  36  Ind.  120;  Gulick  v. 
Connely,  42  Ind.  134;  Rowell  V.  Klein, 
44  Ind.  290,  S.  C.  15  Am.  Rep.  235; 
Williamson  v.  Yingling,  So  Ind.  379; 
Terre  Haute,  etc.,  Co.  v.  Barr,  31  111. 
A  pp.  57. 

2  Union,  etc.,  Co.   v.  Fray,  35  Kan. 


700,  12  Pac.  Rep.  9S.  If  there  is  evi- 
dence upon  a  material  point  it  is,  ot 
course,  error  for  the  jury  to  evade  an 
answer,  and  our  decisions  are  addressed 
to  cases  where  there  was  no  evidence. 
It  is  difficult  to  sustain  a  decision  hold- 
ing that  the  court  may  coerce  a  jury 
into  answering  a  question  contrary  to 
their  belief  that  there  is  no  evidence 
upon  the  point,  since  such  a  course  can 
not  be  pursued  without  invading  the 
province  of  the  jury.  To  coerce  a  ver- 
dict in  such  a  case,  would,  in  effect,  be 
for  the  court  to  make  the  verdict. 
There  can  be  no  doubt  of  the  power  to 
prevent  injustice  resulting  from  the 
failure  or  refusal  of  jurors  to  do  their 
duty,  but  the  remedy  is  not,  as  we  be- 
lieve, by  coercing  the  jury  to  find  one 
way  or  the  other  where  they  are  con- 
vinced that  there  is  no  evidence. 


CHAPTER  VI. 


WAIVER. 


§  674.    Available  error  does  not   exist     §  6S5. 
where    there    is   an    effective 
waiver.  6S6. 

675.  The  doctrine  of  waiver. 

676.  A  party  does  not  waive  a  defect        6S7. 

or  irregularity  of  which  he  is 
excusably  ignorant. 

677.  Appearance — Effect  of. 

678.  Special  or  qualified  appearance.         6SS. 

679.  Waiver  of  objections  to  the  rem- 

edy. 
6S0.    Waiving    objections    to    plead-         6S9. 

ings. 
681.    Failure  to  demur. 
6S2.    Failure    to    demand    a   decision  690. 

upon  demurrer. 
683.    Waiver  of  objections  to  decis-         691. 

ions  on  demurrer. 
6S4.    Instances   of  the  waiver  of  pre-  692. 

liminarv  objections. 


Demurrer  to  the  evidence  — 
Waiver  of  right  to  jury. 

Introducing  evidence  after  de- 
murring— Effect  of. 

Motion  for  direction  to  jury  to 
return  a  verdict  in  favor  of 
moving  parts — Effect  of  sub- 
sequently giving  evidence. 

Waiver  of  objections  to  plead- 
ings by  demurring  to  the  evi- 
dence. 

Effect  of  a  demurrer  upon  the 
right  to  make  rulings  upon  the 
evidence  available. 

Waiver  as  affecting  the  mode  of 
trial. 

Rulings  respecting  procedure  on 
the  trial — Illustrative  case-. 

Rulings  on  the  trial — General 
doctrine. 


§  674.  Available  Error  does  uot  Exist  where  there  is  an  Effective 
Waiver — A  party  may  always  relinquish  a  right  by  a  voluntary 
affirmative  act,  and  so  he  may  by  silence  and  inaction,  where 
action  is  required.  If  there  is  silence  and  inaction  where  a 
positive  act  or  speech  is  required  there  is  a  waiver,  and  where 
there  is  a  waiver  there  can  be  no  available  error.  It  is  a  gen- 
eral rule  of  wide  sweep  broken  by  very  few  exceptions,  that 
action  is  required  of  parties  in  court,  for  silence  and  inaction 
are,  in  the  very  great  majority  of  cases,  regarded  as  waiving 
objections.  And  objections  waived  in  the  trial  court  are  com- 
pletely lost,  for  they  can  not  be  first  made  on  appeal  save  in 
very  rare  cases.1 

1  Ante,  §  4S9.     See,   also,  Louisville,     Rep.  1010:   Bradwell  v.  Pittsburgh. 
etc.,  Co.  v.  Rush,  127  Ind.  545,  26  V  E.     Co.,  139  Pa.  St.  404,  :o  Atl.  Rep.  1046; 

(627) 


G2S 


ERROR   IN  JUDICIAL  PROCEEDINGS. 


§  675.  The  Doctrine  of  Waiver — We  have  often  referred  in 
former  pages  to  the  doctrine  of  waiver,  hut  it  is  of  such  practi- 
cal importance  in  trial  practice  as  an  incident  to  appeals  and  in 
appellate  practice  that  it  requires  specific  consideration.  It 
may  be  said  that  the  rule  is  that  what  is  not  well  objected  to  in 
the  trial  court  and  well  saved  by  a  proper  exception  is  waived. 
As  to  errors  relating  to  the  trial  it  is  to  be  further  said  that  they 
are  waived  unless  the  rulings  in  which  they  exist  are  appro- 
priately brought  before  the  trial  court  for  review.1  But  errors 
may  be  well  saved  and  well  presented  to  the  trial  court  and 
yet  waived  on  appeal  by  a  failure  to  present  them  as  the  law 
or  the  rules  of  the  court  require.2 

§  676.  A  party  does  not  Waive  a  Defect  or  Irregularity  of  which 
he  is  Excusably  Ignorant — As  a  waiver  is  the  voluntary  relinquish- 
ment of  a  right  it  is  essential  that  the  party  against  whom  a 
waiver  is  sought  to  be  made  available  should  have  knowledge 
of  the  defects  or  irregularities  which  it  is  alleged  were  waived 
by  him.3     But  it  is  obvious  that  this  rule  can  have  only  a  very 


Hormann  v.  Hartmetz,  12S  Ind.  353,  27 
N.  E.  Rep.  731;  Montana  Ry.  Co.  v. 
Warren,  137  U.  S.  348;  Fisk  v.  Chi- 
cago, etc.,  Co.,  74  la.  424,  46  N.W.  Rep. 
998;  Tibbetts  v.  Penley,  S3  Me.  11S,  21 
Atl.  Rep.  838;  Williams  v.  Thomas,  3 
New  Mex.  324.  9  Pae.  Rep.  356;  Chi- 
i,  etc.,  Co.  v.  Graney  (111.),  25  N.  E. 
Rep.  798;  Bliley  v.  Taylor.  84  Ga.  154, 
163,  13  S.  E.  Rep.  283;  Connelly  v. 
Shamrock,  etc.,  Society,  43  Mo.  App. 
283;  Ridenhour  v.  Kansas  City,  etc., 
Co.,  102  Mo.  270,  2S3,  14  S.W.  Rep.  760. 
1  Peabody  v.  Sweet,  3  Ind.  514;  New 
Albany,  etc.,  Co.  v.  Callow,  8  Ind. 471; 
Church  v.  Drummond,  7  Ind.  17:  Man- 
ly v.   Hubbard,  9  Ind.   230;  Lindlcv    v. 


Chaplin  v.  Sullivan,  128  Ind.  50,  5,  27  N. 
E.  Rep.  425;  J.  Oberman  Brewing  Co. 
v.  Ohlerking,  ^2  IN-  A.pp.  26;  Garrigan 
v.  Dickey,  1  Ind.  App.  421,  27  N.  E.  Rep. 
713;  Ridenhour  v.  Kansas  City,  etc., 
Co..  102  Mo.  270,  2S3,  14  S.W.  Rep.  760; 
Hint/  v.  Graupner  (111.),  27  N.  E.  Rep. 
935;  Duigenan  v.  Claus,  46  Kan.  275,  26 
Pac.  Rep.  699;  Memory  v.  Niepert,  33 
111.  App.  131. 

2  Tharp  v.  Jamil,  66  Ind.  52;  Lackej 
v.  Hernby,  9  I  ml.  536;  Mumford  v. 
Thomas,  10  Ind.  167;  Witt  V.  King,  56 
Ind.  72.  In  Summerson  v.  II irks,  [34 
Pa. 566,  21  Atl.  Rep.  875,  it  was  held  that 
if  parties  on  appeal  proceed  upon  the 
theory  that  the  questions  are  saved  by 


1  1      in,  13  Ind.  3SS;  Fowler  v.  Burget,     objections  in  the  trialcourt  theywillbe 


16  Ind.  341;  Yoltz  v.  Newbert,  17  Ind. 
187;  Potter  v.  Owens,  iS  Ind.  383;  Dea- 
con v.  Schwartz,  iS  Ind.  285;  Harderle 
r  .City  of  LaFayette,  20  Ind.234;  Hobbs 
r.Cowden,  20  Ind.  310;  Andre  v.  Fry- 
1 ,  70  Ind.  2S0;  Makepeace  v.  Davis, 
27  I  ml.  352;  State  v.  Blanch,  70  Ind.  204; 


held  to  thai  theory,  and  to  have  waived 
the  right  to  allege  that  objections  were 
not  properly  saved   below 

3  Giles  v.  Caines,  3  Caines  (N.  Y.) 
107;  Newbery  v.  Furnival,  56  N.  Y . 
638;  Wolford  v.  Oakley,  1  Sheldon 
(N.  Y.),  261. 


WAIVE  ' 

narrow  scope  and  limited  application  in  procedure,  either  trial 
or  appellate,  inasmuch  as  a  party  in  court,  or  who  ought  to  be 
there,  is  bound  to  take  notice  of  all  that  occurs  in  the  cause,  ex- 
cept matters  of  a  very  extraordinary  nature.  He  must,  of 
course,  take  notice  of  matters  of  law,  and  within  such  matters 
are  included  rules  of  procedure  and  practice.  He  must  use  the 
means  of  knowledge  open  to  him,  for  if  he  is  put  upon  in- 
quiry he  is  chargeable  with  knowledge  of  the  facts  to  which 
such  an  inquiry  reasonably  and  diligently  pursued  would  lead. 
"  Having  the  means  of  knowledge  is  equivalent  to  knowledge." 
The  doctrine  expressed  in  the  maxim  quoted  is  peculiarly  ap- 
plicable to  matters  of  procedure,  for  if  a  party  has  means  of 
knowledge  he  must  actively  and  diligently  employ  such  means, 
or  he  will  be  in  no  situation  to  defeat  a  waiver.  While  there 
are  very  few  instances  in  matters  of  procedure  where  a  party 
can  plead  ignorance  to  escape  a  waiver  there  are,  nevertheless, 
some  where  he  may  successfully  do  so.  The  presumption 
must,  in  almost  every  instance,  necessarily  be  that  a  party  sum- 
moned into  court,  or  who  comes  there  voluntarily,  has  notice 
of  all  that  occurs,  and  if  he  seeks  to  escape  a  waiver  he  must 
overcome  the  presumption.  This  he  can  not  do  unless  he 
makes  a  strong  and  clear  case,  showing  excusable  ignorance 
of  the  facts.  If  he  has  knowledge  of  the  facts,  or  is  charge- 
able with  such  knowledge,  then  he  is  held  to  know  the  legal 
consequences  that  flow  from  the  facts.1 

§  677.  Appearance — Effect  of — It  has  long  been  established 
law  that  a  party  who  fully  appears  to  the  action  or  suit  waives 
all  objections  to  the  jurisdiction  of  the  court  over  his  person. 
If  a  party  desires  to  object  to  process  he  must  enter  a  special 
appearance  for  that  purpose,  for  a  general  appearance  waives 
all  objections  to  the  writ  or  its  service.  It  is  not  material  how 
or  in  what  manner  notice  is  issued  or  served  if  it  fully  accom- 
plishes its  purpose  by  bringing  the  party  into  court  and  afford- 

1  The  principle  stated  in  the  text  ap-  him  is  itself  a  warning  that  he  must  be 

plies  to  estoppels,  and  there  is  stronger  vigilant  and  diligent,  and  this  he  can 

reason   for   applying  it    to  matters  of  not  be  unless  he  informs  himself  as  to 

procedure    than   to   ordinary   cases,   for  the  law.      Dodge  V.  Pope,  93    Ind.  4S0; 

the  fact  that  a  contest  is  waged  against  Krug  v.  Davis,  toi  Ind.  75,  76. 


630 


ERROR  IN  JUDICIAL  PROCEEDINGS. 


ing  him  an  opportunity  to  answer  the  complaint  or  declaration, 
and  this  it  is  held  to  do  whenever  there  is  a  full  appearance.1 
It  is  in  general  true  that  any  act  done  in  a  case  not  accompa- 
nied bv  an  express  qualification  or  restriction  limiting  the  ap- 
pearance to  what  is  called  by  some  of  the  courts  a  "special 
appearance"  and  by  others  "a  qualified  appearance,"  is  re- 
garded as  a  general  appearance.  Thus,  the  filing  of  a  demur- 
rer assigning  any  other  ground  than  one  assailing  the  jurisdic- 
tion is  such  an  appearance  as  waives  purely  preliminary 
motions  or  objections.-  Appearing  to  a  motion  and  arguing 
the  merits  is  a  general  appearance.3  If  a  party  joins  with  ob- 
jections to  the  jurisdiction,  objections  or  defenses  going  to  the 


1  Clark  v.  Lilliebridge(Kan.),  26  Pac. 
Rep.  4;,;  /;/  re  Bingham,  127  N'.Y.^G, 
27  N.  E.  Rep.  1055;  St.  Louis,  etc.,  Co. 
:  McBride,  141  U.  S.  127;  Mason,  etc., 
Drainage  District  v.  Griffin,  134  111. 
330;  Hazard  v.  Wason,  152  Mass.  26S, 
j;  \.  E.  Rep.  465;  Granville  County, 
etc.,  Board  v.  State  Board,  etc..  106  N. 
C.  81;  Bishop  v.  Silver  Lake,  etc.,  Co., 
62  N.H.455;  Railroad  Co.  v.  Morey, 47 
Ohio,  207,  7  Law.  Rep.  Anno.  701,  24  N". 
E.  Rep.  209;  Moore  v.  Gamgee  L.  R., 
25  Q^B.  244;  Dikeman  ©.Struck, 76 Wis. 
332.  45  N.  W.  Rep.  11S;  City  of  Craw- 
ville  v.  Hays,  42  Ind.  200;  Albert- 
son  v.  Williams,  zt,  Ind.  612;  Piatt  v. 
Manning,  34  Fed.Rep.S17;  Louisville, 
etc.Co. v. Nicholson, 60 Ind.  158;  Moul- 
ton  v. Baer, 78 Ga.  215,2  S.  E.  Rep.  471; 
Colorado,  etc.,  Co.  v.  Caldwell,  11  Col. 
545,  19  Pac.  Rep.  542;  Reed  v.  Cates, 
11  Col.  527,  19  Pac.  Rep.  404.  An  en- 
try of  appearance  in  the  Federal  Court 
is  a  waiver  of  the  objection  that  the 
party  was  not  served  in  the  district 
where  he  resides.  Foote  v.  Massachu- 
setts, etc.,  Association,  39  Fed.  Rep.  23; 
Blackburn  v.  Selma,  etc.,  Co.,  2  Flip- 
pin.  525;    Harkness  v.  Hyde,  98  U..S 

i  Singleton  v.  O'Blenis,  125  Ind.  151, 


25  X.  E.  Rep.  154;  Knight  v.  Low,  15 
Ind.  374;  City  of  Crawfordsville  v. 
Hays,  42  Ind.  200;  Slauter  7-.  Hollo- 
well,  90  Ind.  286;  Gilbert  v.  Hall,  1  15 
Ind  549;  Ex  parte  Henderson,  84  Ala. 
36,  4  So.  Rep.  2S4;  Ford  v.  Ford,  no 
Ind.  S9;  Sunier  v.  Miller,  105  Ind.  393; 
Green  v.  Elliott,  S6  Ind.  53;  Schmied 
v.  Keenev,  72  Ind.  309;  Neff  v.  Reed, 
9S  Ind.  341;  St.  Louis,  etc.,  Co.  v.  Mc- 
Bride, 141  U.S.  127;  Donnellv  t'.Wool- 
sey,  59  IIun.6iS;  Nashua  Savings  Bank 
z'.Lovejov,  1  N.  Dak.211,46  N.W.  Rep. 
411;  Kegg  v.  Welden,  10  Ind.  550; 
Lewis  v.  Brackenridge,  1  Blackf.  112; 
Vermilya  :■.  Davis,  7  Blackf.  158;  Dud- 
ley V.  Fisher,  7  Blackf.  553;  Cleveland 
v.  Obenchain,  107  Ind.  591;  Robinson 
:•.  Rippey,  1  n   Ind.  1 12. 

3  Cincinnati,  etc.,  Co.  v.  Belle  Cen- 
tre (Ohio),  27  N.  E.  Rep.  464.  See, 
generally.  White  V.  Morris,  107  N.  C. 
92;  Hall  v.  Craig,  125  Ind.  523,  25  N. 
E.  Rep.  5}S;  Fitzgerald,  etc.,  Co.  v. 
Fitzgerald,  [37  (J.  S.  98;  Lane  v.  Fox, 
S  Blackf.  58;  Bush  v.  Bush,  46  Ind.  70; 
Harvey  :••  Donnellan,  36  Ind.  501; 
Wiseman  r.  Risinger,  14  Ind.  461; 
Dickerson  v.  Hays,  4  Blackf.  44;  Col- 
lege Corner,  etc.,  Co.  v.  Moss,  77  Ind. 
!39- 


WAIVER. 


merits  there  is,  as  a  general  rule,  full  appearance.1  Jf  a  party 
appropriately  and  seasonably  objects  to  the  jurisdiction  of  his 
person  he  is  not.  according  to  what  seems  to  us  the  better  opin- 
ion, to  be  regarded  as  waiving  the  objection  by  answerinj 
the  merits  after  his  objection  is  overruled  and  due  exception 
reserved.  Having  done  all  in  his  power  at  the  proper  time, 
present  his  objection,  subsequently  contesting  the  case  is  in  no 
just  sense  a  waiver.  A  party  can  not  be  held  to  relinquish  a 
right  which  he  asserts  as  the  law  requires,  nor  is  he  bound  to 
constantly  repeat  his  objections.  It  would  be  unjust  to  hold 
that  he  must  surrender  his  right  to  contest  the  case  upon  the 
merits  or  yield  a  right  he  has  done  his  best  to  preserve  and  as- 
sert.2    It  is  held  to  be  within  the  discretion  of  the  court  to  per- 


1  Kaw  Valley  Life  Association  v. 
Lemke,  40  Kan.  142,  19  Pac.  Rep.  337. 
See  Walker  v.  Turner,  27  Neb.  103,42 
N.  W.  Rep.  91S. 

2  In  discussing  the  general  subject 
the  Supreme  Court  of  the  United  States 
by  one  of  its  ablest  members,  Mr.  Jus- 
tice Harlan,  said :  "But  the  inferior 
State  court  having  ruled  that  the  right 
of  removal  did  not  exist  and  that  it  had 
jurisdiction  to  proceed,  the  company 
was  not  bound  to  desert  the  ease  anil 
leave  the  opposite  party  to  take  judg- 
ment by  default.  It  was  at  liberty,  its 
right  of  removal  being  ignored  by  the 
State  court,  to  make  defense  in  that 
tribunal  in  every  mode  recognized  by 
the  laws  of  the  State,  without  forfeiting 
or  impairing  in  the  slightest  degree,  its 
right  to  a  trial  in  the  court  to  which 
the  action  had  been  transferred,  or 
without  affecting  to  any  extent  the  au- 
thority of  the  latter  to  proceed." 
Steamship  Co.  v.  Tugman,  106  l".  S. 
11S.  The  court  cited  as  sustaining  the 
doctrine  declared  the  cases  of  Railroad 
Co. -•.  Koontz,  104  U.S.  5;  Railroad 
Co.  v.  Mississippi,  102  V .  S.  135;  Kern 
v.  Huiderkoper,  103  V  S.  )Ns;  Insur- 
ance Co.  ;•.  Dunn,  ig  Wall.  214.  In 
Jones  v.  Jones,   10S    N.  Y.  415, 


said:  "The  principle  has  been  applied 
in  a  great  variety  of  cases  and  there  is 
substantial  uniformity  in  the  decisions 
to  the  effect  that  a  party  not  served 
with  process  so  as  to  give  the  court 
juri--diction  of  his  person,  does  not 
waive  the  objection  nor  confer  jurisdic- 
tion by  answering  over  and  going  to 
trial  on  the  merits  after  he  has  ineffectu- 
ally objected  to  jurisdiction  and  his  ob- 
jection has  been  overruled."  This 
doctrine  is  supported  by  the  weight  ol 
authority.  Walling  v.  Beers,  120  Mass. 
548,  550;  Avery  v.  Slack.  17  Wend.  85; 
Harkness  v.  Hyde, 98  L'.  S.470;  Dewey 
V.  Greene,  4  Denio,  93;  Warren  v. 
Crane,  50  Mich. 300,  15  N.  W.Rep.465. 
In  the  case  las'  cited  it  was  said: 
"  Waiver  is  a  voluntary  act  and  implies 
an  election  by  a  party  to  dispense  with 
something  ot"  value  or  to  forego  some 
advantage  which  he  might  at  his  option 
have  demanded  or  insisted  upon." 
This  principle  is.  as  we  believe,  the 
controlling  one,  and  leads  to  the  con- 
clusion asserted  in  the  text,  inasmuch 
.is  a  party  who  opposes,  actively  and 
properly,  jurisdiction  over  his  person 
can  not  be  held  to  voluntarily  submit 
by  answering  over  to  the  merits.  He  acts 
coercion  and  not  voluntarily. 


t]32  ERROR   IN  JUDICIAL  PROCEEDINGS. 

mil  a  party  who  has  voluntarily  appeared  to  withdraw  his  ap- 
pearance in  a  cause  where  there  has  been  no  service  of  process,1 
but  the  court  is  not  bound  to  allow  a  withdrawal  as  a  matter  of 
right.2  As  indicated  in  the  first  note  to  the  preceding  sentence 
we  think  that  where  the  court  simply  permits  the  withdrawal 
1  of  appearance  and  subsequently  renders  judgment,  the  defend- 
ant can  not  overturn  the  judgment  without  bringing  into  the 
record  facts  showing  that  there  was  not  due  notice,3  and  our 
reason  for  this  conclusion  is  that  after  appearance  the  presump- 
tion is  that  jurdisdiction  existed.  To  infer  that  there  was  no 
jurisdiction  where  there  is  an  appearance  and  judgment  in  a 
case  where  the  record  is  silent  would  be  to  violate  the  rule  that 
all  reasonable  presumptions  will  be  indulged  in  favor  of  the 
action  of  the  trial  court.  General  appearance  alter  a  discon- 
tinuance operates  as  a  waiver,4  and  such  an  appearance  waives 
a  dismissal.5 

§  678.  Special  or  Qualified  Appearance — There  is  some  diversity 
of  opinion  upon  the  question  of  the  right  of  a  party  to  so  limit 
his  appearance  as  to  prevent  a  surrender  of  objections  to  juris- 
diction over  his  person.  The  doctrine  supported  by  principle 
and  the  overwhelming  weight  of  authority  is  that  a  special  or 
qualified  appearance  may  be  entered  in  such  a  mode  as  to  avoid 

1  McArthur  v.  Lefler,  no  Ind.  526;  no  jurisdiction.     As  the  case  of  McAr- 

Young  v.  Dickey,  63  Ind.  31.     The  de-  thur  v.  Lefler,  supra,  rests  entirely  on 

cision  in  the  case  last  cited  seems  to  us  Young  v.  Dickey,  supra,  what   is  said 

to  he   wrong.     If  there   is  an    appear-  of  the  latter  cases  applies  to  the  former, 

ance  and   nothing  more  is   shown,  the  2  New  Albany,  etc.,  Co.  v.  Combs,  13. 

presumption  is  that  jurisdiction  existed  Ind.  490. 

and  this,  of  course,  implies  that   there  s  The   code  declares    that   the   tran- 

was  service  of  process.     The  decision  script  shall  not   include   "  a  summons 

is  opposed  to  an  elementary  rule  long  for    the    defendant  in  cases    where    all 

settled.     The  case  of  Coffin  v.  Evans-  persons  named   in  it   have  appeared  to 

ville,  etc.,  Co.,  7  Ind.  413,  is  certainly  the  action."     R.  S.  1SS1,  §  650. 

against  the   doctrine  of  the  case  under  *  Breese  v.  Allen,   12   Ind.  426;     Mc- 

mention.     Carver  :•.  Williams,  10   Ind.  Dougle  v.  Gates,  21   Ind.  65;    Clarke. 

267,    does  not   support   that  case,    nor  State,  4  Ind.  26S;   Humble  v.  Bland,  6 

does  Smith  v.  Foster,  59  Ind.  595.     In  Term  R.  255. 

■  cases  it  was  held  that  the  court  °  Mahon  v.  Mahon,  19  Ind.  324;  Bos- 

properly   rendered  judgmenl    and    this  ley  v.  Farquar,  2  Blackf.  61;   Wilson  v. 

excludes  the  conclusion  that  there  was  Coles,  2  Blackf.  402. 


WAIVER. 


633 


a  surrender  of  the  right  to  denv  jurisdiction.1  It  is  necessary  to 
carefully  guard  and  limit  appearance  to  the  single  point  of 
specially  appearing  for  the  purpose  of  assailing  the  jurisdiction 
of  the  court.2  It  has  been  declared  by  the  Supreme  Court  of  the 
United  States  that  the  court  may, in  its  discretion, permit  ageneral 
appearance  to  be  withdrawn  and  a  special  appearance  to  be  en- 
tered, but  it  is  indicated  that  the  party  to  whom  the  provision  is 
granted  can  not  move  to  dismiss  the  appeal  and  that  there  is  a  dif- 
ference between  the  procedure  in  the  appellate  tribunal  and  that 
in  the  court  of  original  jurisdiction.5  In  a  case  decided  by  one  of 
the  Federal  circuit  courts  it  was  held  that  a  court  of  original 
jurisdiction  might  permit  the  amendment  of  an  appearance  by 
limiting  a  general  appearance  to  a  special  one.4   It  seems  quite 


1  Kinkade  v.  Myers,  17  Ore.  470,  21 
Pac.  Rep.  557;  Chubbuck  v.  Cleveland, 
37  Minn.  466,  S.  C.  5  Am.  St.  Rep.  S64; 
Chesapeake,  etc., Co."'.  Heath, S7  Ky.651, 
9  S.  W.  Rep.  S32;  Paxton  v.  Daniell,  1 
Wash.  16,  23  Pac.  Rep.  441;  Campbell 
V.  Swasey,  12  Ind.  70;  Daily  :■.  Schra- 
der,  34  Ind.  260;  Carson  v.  Steamboat 
Talma,  3  Ind.  194;  Collins  v.  Nichols, 
7  Ind.  447;  Cohen  v.  Trowbridge,  6 
Kan.  385;  Simcock  v.  Bank,  14  Kan. 
1529;  Branner -'.  Chapman,  11  Kan.  118; 
Huff  v.  Shepard,  58  Mo.  242;  Anderson 
7'.  Brown,  9  Mo.  646;  Harkness  v. 
Hyde,  98  U.S.  476;  Mulhern  v.  Press, 
etc.,  Co.,  53  N.J.  Law.  150,  20  Atl.  Rep. 
760;  Brown  v.  Rice,  30  Neb.  236,  46  X. 
W.  Rep.  4S9.  In  Brown  v.  Webber,  6 
Cush.  560,  it  was  said  by  Shaw  C.J.: 
"  If  the  defendant  would  object  to  the 
irregularity  or  want  of  due  service  in 
this  respect,  he  may  do  so  by  plea  in 
abatement  where  it  is  necessary  to 
plead  any  matter  of  fact  on  which  his 
objection  is  founded,  or  by  motion  to 
dismiss  where  the  objection  is  appar- 
ent on  the  face  of  the  proceedings  or 
the  return  of  the  officer;  and  in  either 
case  before  pleading  generally  to  the 
merits.  And  to  enable  him  to  do  this 
he   may   appear  specially  for   the  pur- 


pose of  stating  such  objection  without 
thereby  waiving  it.  But  if  he  will  enter 
a  general  appearance,  or  plead  to  the 
merits,  or  lie  by  after  he  is  aware  of  the 
matter  of  the  objection  to  the  juris- 
diction, he  thereby  submits  himself  to 
the  jurisdiction  of  the  court." 

2  Bucklin  v.  Strickler  (Neb.),  49  N. 
W.  Rep.  371.  See,  generally,  Sealy  :•. 
California,  etc.,  Co.,  19  Ore.  94,  24  Pac. 
Rep.  197. 

3  United  States  v.  Yates,  6  How. 
606,  607.  It  was  said  by  the  court  in 
the  case  cited  that:  "  The  serious  ob- 
jections which  often  exist  to  permitting 
an  attorney  to  strike  out  his  appearance 
for  a  defendant  in  a  court  exercising 
original  jurisdiction  do  not  apply  to  an 
appellate  court."  See,  generally,  Gra- 
ham v.  Spencer,  14  Fed.  Rep.  603,  606; 
Carroll  v.  Dorsey,  20  How.  (U.  S.),  204, 
207;  Creighton  v.  Kerr,  20  Wall.  12; 
1  [abich  v.  Folger,  20  Wall,  1,  7;  Rl 
Island  v.  Massachusetts,  13  Pet.  23. 

4  Hohorsl  v.  Hamburg- American 
Packet  Co.,  38  Fed.  Rep.  273.  In  the 
case  cited  the  court  --aid:  "That  the 
court  has  power  to  allow  a  general  no- 
tice  of  appearance  to  lie  amended  - 

to  make  it    a    special  appearance  seems 
to  he  well  settled." 


634  ERROR    IN  JUDICIAL  PROCEEDINGS. 

clear  that  where  there  is  fraud  or  mistake  and  no  fault  on  the 
part  of  a  party  who  enters  a  general  appearance  he  may 
be  relieved  upon  timely  and  sufficient  application,1  but  we  sup- 
pose it  equally  clear  that  a  party  can  not  insist  upon  a  with- 
drawal of  his  appearance  as  of  right  and  without  cause  shown. 

§  679.  Waiver  of  objections  to  the  Remedy — A  party  by  silence 
and  inaction  may  waive  all  questions  as  to  the  character  of  the 
remedy  adopted.  A  striking  illustration  of  the  doctrine  that 
objections  to  the  remedy  are  waived  by  a  failure  to  object  is 
supplied  by  the  cases  which  hold  that  if  the  objection  that  there 
is  an  adequate  remedy  at  law  is  not  properly  made  in  a  court  of 
equity  it  will  be  waived.2  If  waived  it  can  not,  of  course,  be 
regained.3  The  question  of  remedy  partakes  in  no  slight  de- 
gree of  the  elements  of  jurisdiction  of  the  subject,  but  objec- 
tions to  the  remedy  may,  nevertheless,  be  waived.  From  this 
it  seems  that  there  is  really  a  third  class  of  jurisdiction  and  that 
the  division  of  jurisdiction  into  two  classes  is  not  exhaustive 
What  the  third  class  shall  be  denominated  or  what  its  nature 
and  extent,  it  is  foreign  to  our  present  purpose  to  inquire. 

§  680.  Waiving  objections  to  Pleadings — Where  objections  to 
pleadings  are  etfective  only  when  made  in  a  designated  mode 
they  are  waived  unless  made  in  that  mode.  Objections  not 
made  substantially  as  the  law  requires  are  ineffective.  Thus, 
the  failure  to  move  to  make  a  pleading  more  definite  or  certain 
waives  an  objection  on  the  ground  of  uncertainty,  unless  the 
pleading  is  so  wholly  destitute  of  certainty  as  to  be  without 
effect-1     So,  a  motion  to  separate  a  pleading  into  paragraphs 

1  Malin  v.  Kinney,  i  Cain.  Rep.  117;  *  Mills  v.  Rice,  3  Neb.  76;  Trustees, 
Becker--.  Lamont,  13  How.  Pr.  Rep.  etc.,  v.  Odlin.  S  Ohio  St.  293,  294;  Myer 
23;  I  iirnival  v.  Bogle,  4  Russ.  R.  142;  v.  Moon.  45  Kan.  5S0,  26  Pac.  Rep.  40; 
Hunt  v.  Brennan,  1  Hun.  213;  Sullivan  Woodruff  v.  Jabine  (Ark.),  15  S.  W. 
v.  Frazee,  4  Rob.  (N.Y.),  616.  Rep.  S30;  Copeland   v.  State,   126  Ind. 

2  Clark  v.  Flint.  22  Pick.  231;  First  51,  25  N.  E.  Rep.  S66;  Cottrell  v.  Cot- 
Congregational  Society  v.  Trustees,  23  trell,  126  Ind.  1S1.  25  N.  E.  Rep.  905; 
Pick.  148;  Russell  v.  Loring,  3  Allen,  Plunkctt  ;•.  Minneapolis,  etc.,  Co.,  79 
121;  Tarbell  v.  Bowman,  103  Mass. 341 ;  Wis.  222,48  N.W.  Rep.  519.  See, yen- 
Jones  :■.  Keen.  115  Mass.  170.  orally .  as  to  motions  addressed  to  plead- 

3  Matter  of  Cooper.  93  N.  Y.  507.  ings,  Smith  v.  Summerrield,  to8  N.  C 


WAIVER. 


63o 


must  be  opportunely  made,  or  waiver  will  be  enforced.'  Un- 
der our  decisions  a  single  paragraph  of  answer  or  complaint 
should  not  be  double,  but  if  so  the  remedy  is  bv  motion.2  If  it 
states  only  one  good  cause  of  action  or  defense  it  will  not  be 
bad  for  duplicity,  although  there  may  be  allegations  attempting 
to  set  forth  another  defense  or  cause  of  action.  In  such  a  i 
the  allegations  not  essential  to  the  well  alleged  cause  of  action 
or  defense  may  be  regarded  as  surplusage.3  But  one  office 
can,  as  a  general  rule,  be  performed  by  a  single  paragraph  of 
a  pleading,  thus,  a  paragraph  of  an  answer  can  not  be  both  a 
general  denial  and  a  plea  in  confession  and  avoidance,4  and 
the  result  is  that  the  attempt  to  so  blend  the  defenses  waives 
one  of  them.  Objection  that  a  pleading  is  not  verified  must  be 
made  by  motion  or  the  objection  will  not  be  available  on  ap- 
peal.5    The  rule  we  are  here  concerned  with  is  strikingly  illus- 

2S4,  12   S.  E.  Rep.  997;    Citizens,  etc.,  v.  White,   53   Ind.   1;  Porter  v.  Brack  - 

Co.  f.  Shenango  Natural  Gas  Co.,   138  enridge,  2  Blackf.  3S5;   Hay  v.  State.  ^S 

Pa.  St.  22,  20  Atl.  Rep.  947;  Pavey  v.  Ind.  337. 

Pavey,  30  Ohio  St.  600;    Plummer  v.  *  Campbell  v.  Routt, 42  Ind.  410;   In- 

Mold,    22    Minn.    15;    Turner  v.  First  diana,  etc..  Board  v.  Gray,  ^4  Ind.  91; 

National    Bank,   26  Iowa,   562;   Hewitt  Kimble  v.  Christie,  55  Ind.   140:    Nvse- 

v.  Brown,  21  Minn.  163.  wander  v.  Lowraan,  124  Ind.  584;   Petti 

1  McKinney  v.  McKinney,  8  Ohio  St.  v.  Trustees,  etc.,  95  Ind.  27S;   State  v. 

423;   McCarthy  v.  Garraghty,   10  Ohio  Foulkes,  94  Ind.  493,  49S;   Richardson 

St.  43S;  Truitt   v.   Baird,   12   Kan.  420;  v.  Snider,  72  Ind. 425;  Neideferv.  Chas- 

Township   of  Hartford  v.  Bennett,   10  tain,  71    Ind.  363.    S.  C.   36  Am.  Rep. 

Ohio    St.   441;   Sentinel  Co.  v.  Thorn-  19S;   Woollen  f.  Whitacre,  73  Ind.  198; 

son,  38  Wis.  489;   Bass  v.  Comstock,  3S  Cronk  r.  Cole,  10  Ind.  481;. 

N.  Y.  21;   Adams  v.  Secor,  6  Kan.  542,  5  State  v.  Ruhlman,  in  Ind.  17:  To- 

547.     As  to  when  a  ruling  on  a  motion  ledo,  etc.,    Works    v.    Work.    70     Ind. 


to  separate  constitutes  available  error, 
see  Goldberg  v.  I'tlev.  60  X.  Y.  427; 
Pierce  7'.  Bicknell,  n  Kan.  262. 

J  Hendry  v.  Hendry.  7,2  Ind.  349; 
State  v.  Newlin.  69  Ind.  108;  Barnes  v. 
Stevens,  (12  Ind.  22<<;  Denman  v.  Mc- 
Makin,37  Ind.  241:  Jones  v.  Hathaway, 
77  Ind.  14;  Rogers  V.  Smith,  17  Ind. 
323;  Evans  v.  White,  53  Ind.  1;  Rielay 
v.  Whitcher,  iS  Ind.  45S;  Spencer  v. 
Chrisman,  15  [nd. 215;  Johnson  w.Craw- 
fordsville,  etc.,  11  Ind.  280. 

3  Booher  :\  Goldsborough,  44  Ind. 
490;  Thompson  v.  Oskamp,  19 Ind.  599; 
Swinney  :•.  Nave,  22   Ind.  17S;   Evans 


253;  Indianapolis,  etc.,  Co.  7'.  Summers, 
28   Ind.   521;   Bradley   v.  Bank.  20  Ind. 
52^    Beeson  7'.    Howard.   44   Ind.    413; 
Vail  V.  Rinehart.  105  Ind.  6;    Payne    :■. 
Flournov,  29   Ark.   500;    Moses   v.  Ris- 
don,  46  Iowa,  251;   Schwarz  v.  Oppold, 
74  N.  Y.  307;    Hughes  v.  Feeter,  t8  la. 
142;  Pudney  7'.   Burkhart,  62  Ind 
Butler  v.  Church,  etc.,   14    Bush.    ;(•>; 
State  7'.  Ruth,  21    Kan.   583.      See.  gen- 
erally,  Fritz    7'.     Barnes,    6     Neb. 
Warner  v.   Warner.    11    Kan.   121.     As 
to  right  to  amend  by  verifying,  see  I 
7\  United  States  Slate  Co..  n>  How.  Pr. 
129;  Bragg  7'.  Bickford,  4   How.  Pr.  21. 


(336  ERROR  IN  JUDICIAL  PROCEEDINGS. 

trated  in  the  familiar  doctrine  long  held  with  respect  to  matters 
in  abatement,  for  that  doctrine,  as  is  well  known,  is  that  such 
matters  must  be  promptly  and  properly  pleaded  or  they  will  be 
deemed  waived.  It  can  hardly  be  said  that  the  rule  is  so  strict 
regarding  other  matters  as  it  is  respecting  matters  in  abate- 
ment, but  it  is  quite  safe  to  say  that  in  all  cases  objections  must 
be  made  in  due  form  and  proper  order  or  no  available  error 
can  be  alleged  on  the  decisions  made  upon  them.  Thus,  if  a 
party  after  answering  should  move  to  separate  into  paragraphs, 
or  to  make  more  certain,  his  motion  would  come  too  late,  and 
no  available  error  could  be  assigned  upon  the  ruling  denying 
it.  The  court  may,  in  its  discretion,  allow  a  party  to  withdraw 
a  pleading  in  order  to  make  the  motion  which  ought  to  have 
preceded  the  pleading,  but  it  is  not  bound  to  do  so;  and  hence 
its  refusal  can  not  be  successfully  assigned  as  error. 

§  681.  Failnre  to  Demur— The  rule  that  pleadings  are  aided 
by  a  verdict  rests  in  part,  at  least,  upon  the  doctrine  of  waiver. 
The  party  who  fails  to  interpose  an  objection  available  on  de- 
murrer voluntarily  relinquishes  a  right  which  he  can  not  re- 
gain.1 The  availability  of  objections  in  a  case  where  a  demur- 
rer is  interposed  in  due  time  and  in  an  appropriate  form  as- 
sumes a  very  different  phase  from  the  one  it  wears  where  the 
objections  are  made  by  a  motion  in  arrest  or  by  a  specification 
in  the  assignment  of  errors.2     The  cases  to  which  we  have  re- 

1  As  illustrating  this  general  doctrine  v.  Lane,  40  Kan.  491,  20  Pac.  Rep.  258; 

may    be   cited    St.   Louis,  etc.,  Co.   v.  Palmer  v.  Arthur,  131    U.  S.  60;  John- 

Triplett  (Ark.),    11    Law.   Rep.   Anno,  son   v.   Ahrens,  117   Ind.  600,  19  N.  E. 

--\.     Shreffler  v.  Nadelhoffer,   133  111.  Rep.  335. 

536,    j;    N.   E.    Rep.   630;  Johnson   v.  2  McFadin    v.    David,    7S    Ind.   445; 

Miller  (Iowa),  48   N.    W.    Rep.    10S1;  Johnson    v.    Breedlove,    72     Ind.  36S; 

Louisville,  etc.,  Co.  v.    Harrington.  92  New  v.  Walker,  108  Ind.  365;   Dowling 

Ind.    1.57;    Yeoman   v.   Davis,  86  Ind.  v.   Crapo,  65  Ind.    209;     McMillen   v. 

189;   |<-nkins  r\  Rice,  84  Ind.  342;   Du-  Terrell,  23  Ind.  [63;  Sharpe v. Clifford, 

Souchel  v.   Dutcher,  1 13  Ind.  249:   Fel-  44    Ind.  346;   Murphy   v.  Lambert,   59 

ger    v.    Et/ell.  75   Ind.   417;  Quirk    v.  Ind.  477;  Jones  v.  Ahrens,  116 Ind.  490; 

Clark.   7    Mont.  31,    14    l'ac.    Rep.  669;  Sims  v.  Dame,  113  Ind. 127;  Stewart:'. 

Cribb  T-.W'aveross,  etc.,  Co.,  82  Ga.  597,  Slate.  1  [3  Ind.  505;  Matson  v.  Swanson, 

9   S.  I'..  Rep.  426;   Trebby  v.  Simmons,  131  111.  255,  23  N.  E.  Rep.  595;  Geveke 

[inn.  508,  38  N.  W.  Rep.  693.     See,  v.  Grand   Rapids,    etc.,   Co.,   57    Mich. 

generally,  Peden  v.   Mail,  118  End.  1556,  589;   Lenahen  v.  Desmond,  150  Mass. 

20    \     E.    Rep.  493;    Herron  :  .  y'ole.  2^2.22  M.  E.  Rep.  903;  Smith  v.  Hel- 

25  Neb.  692,  41  N.  W.  Rep. 765;  Meyer  ler,  119  Ind.  212.  21  X.  E.  Rep.  657. 


WAIVER. 


637 


ferred  in  the  note,  and  to  which  many  more  might  easily  be 
added,  are  sufficient  to  show  (and  that  is  all  that  our  immediate 
purpose  requires)  that  the  failure  to  act  in  due  time  and  in  the 
appropriate  mode  is  often  construed  to  be  a  waiver. 

§  682.  Failure  to  Demand  a  Decision  upon  Demurrer — A  party 
has  a  right  to  have  an  issue  of  law  disposed  of  before  going  to 
trial  upon  the  facts,  but  if  he  goes  to  trial  without  objection  he 
waives  a  decision.  It  is  upon  this  general  principle  that  it  is 
held  that  if  a  party  goes  to  trial  without  an  issue  he  will  be 
deemed  to  have  relinquished  all  objections  because  of  the  fail- 
ure to  join  issue.1     Where  a  party  whose  demurrer  is  pending 


1  Ante,  §§  352,  470,  482.  Farmers, 
etc.,  Co.  v.  Canada,  etc.,  Co.,  127  Ind. 
250;  Citizens'  Bank  v.  Bolen,  121  Ind. 
301;  Purple  v.  Harrington,  119  Ind.  164; 
June  v.  Payne,  107  Ind.  307,  313;  Bu- 
chanan v.  Berkshire,  etc.,  Co.,  96  Ind. 
510;  Locke  v.  Merchants'  Nat.  Bank,  66 
Ind.  353;  Casad  v.  1 1  old  ridge,  50  Ind. 
529;  Taylor  v.  Short,  40  Ind.  506;  Train 
v.  Gridley,  36  Ind.  J41 ;  Ringle  v.  Bick- 
nell,  32  Ind.  369;  Bender  v.  State,  26 
Ind.  285.  Our  rule  is  that  an  issue  will 
be  presumed  to  have  been  made  and 
judgment  can  not  be  entered  as  by  con- 
fession. In  June  :•.  Payson,  supra,  it 
was  said:  "  Where  without  objection  a 
party  alleging  affirmative  matter  in  his 
pleading  goes  to  trial  without  requiring 
an  issue  to  be  formed  upon  such  plead- 
ing, he  can  not  afterwards  ask  judgment 
in  his  favor  as  by  confession."  The  cases 
of  Bass  v.  Smith,  61  Ind.  72;  Lewis 
v.  Bortsfield,  75  Ind.  390;  Felger  v. 
Etzell,  75  Ind.  417,  and  Stribling  v. 
Brougher,  79  Ind.  32S,  were  cited.  In 
Colorado  a  different  doctrine  is  held. 
That  doctrine  was  declared  in  Daniel- 
son  v.  Gude,  11  Col.  87,  94.  in  this  lan- 
guage: '"The  defendants,  by  entering 
upon  and  proceeding  with  such  trial 
upon  the  merits  without  demanding  a 
ruling  upon  the  demurrer,  thereby 
waived  the  same.  Anderson  v.  Sloan, 
1  Col.  4S4.  The  demurrer  being  waived 


and  no  answer  to  the  complaint  being 
interposed,  every  material  allegation  of 
the  complaint  must,  for  the  purposes 
of  the  action,  be  taken  as  true."  It 
seems  to  us  that  the  doctrine  of  the 
learned  court  in  the  case  from  which 
we  have  quoted  is  not  the  correct  one. 
The  submission  of  a  case  to  the  triers 
of  the  facts  implies  that  there  is  some 
issue  of  fact  to  be  tried,  and  this  impli- 
cation can  not  exist  if  the  facts  are  con- 
fessed. The  natural  and  reasonable  in- 
ference is  that  parties  waive  the  forma- 
tion of  regular  issues  and  submit  the 
case  for  trial  without  formal  plead- 
ings. There  is  in  all  cases  where  both 
parties  voluntarily  go  to  trial  upon 
the  facts  a  waiver  by  each  party  re- 
spectively. The  one  waives  a  right  to 
demand  a  formal  pleading,  ami  the 
other  waives  a  right  to  object  because 
there  are  no  pleadings  making  an  is>ue 
of  fact  in  due  and  regular  form.  The 
reasonable  presumption  is  that  the 
parties  elect  to  treat  all  affirmative  alle- 
gations as  controverted.  Davis  f.Pool, 
67  Ind.  425;  Cogswell  v.  State, 65  Ind. 
1;  Carriger  t>.  Sicks,  73  Ind.  76;  Dodds 
V.  Vannov,  61  Ind.  S9;  Brand  v.  Whe- 
lan,  iS  111.  App.  1S6;  City  ot  Chicago  v. 
Wood,  24  111.  App.  40;  In  re  Doyle, 
73  Cal.  564;  Quimby  v.  Boyd,  8  Col. 
'94.  34-- 


638  ERROR   IX  JUDICIAL   PROCEEDINGS. 

and  undecided  answers  he  waives  the  demurrer,  inasmuch  as 
In  answering  he  informs  the  court  that  he  relinquishes  aright 
to  a  decision.1 

§  683.   Waiver  of  Objections  to  Decisions  on  Demurrer  — If  a 

part)  answers  a  complaint  after  a  ruling  on  demurrer  declaring 
it  to  be  bad,  he  waives  the  demurrer.2  Amending  a  pleading 
after  a  ruling  on  demurrer  is  a  waiver  of  the  right  to  make  the 
ruling  available  on  appeal.3  It  is  not  necessary  that  there 
should  be  a  direct  and  formal  amendment  in  order  to  call  into 
force  the  rule  that  an  amendment  waives  objections  and  excep- 
tions to  a  decision  upon  demurrer,  for  if  another  pleading  is 
found  in  the  record  substantially  the  same  as  that  held  bad  on 
demurrer  it  will  be  held  that  objections  and  exceptions  to  the 
ruling  adjudging  it  bad  are  waived,1  but  where  an  additional 
or  new  pleading  is  filed  alleging  matter  essentially  different 
from  that  contained  in  the  pleading  held  bad,  the  rule  does  not 
apply.5 

^  684.  Instances  of  the  Waiver  of  Preliminary  Objections— If  a 
party  appears  and  goes  to  trial  upon  the  merits  without  object- 
ing, in  a  case  where  an  affidavit  is  required,  he  waives,  as  a 
general   rule,  the   right  to   insist  that   no   affidavit   was  filed.6 

1  De  La  Hunt  v.  Holderbaugh,  58  36  Ind.  470;  Hooker  v.  Brandon,  66 
Ind.  285;  Washburn  v.  Roberts,  72  Ind.  Wis.49S;  Polleys  v.  Swope,  4  Ind.  217; 
21.3;  Beckner  v.  Riverside,  etc..  Co.,  65  St.  John  v.  Hardwick,  17  Ind.  180;  Jay 
Ind.  468.  See,  generally,  Hiatt  v.  Renk,  W.Indianapolis,  etc.,  Co.,  17  Ind.  262; 
64  Ind.  590;  Locke  v.  Merchants,  etc.,  Ham  v.  Carroll,  17  Ind.  442;  Caldwell 
Hank,  66  Ind.  353;  Waugh  v.  Waugh,  v.  Bank  of  Salem,  20  Ind.  294;  Aiken 
47  Ind.  5S0.  v.  Bruen,  21  Ind.  137;  Patrick  v.  Jones, 

2  Grose  v.  Dickerson,  53  Ind.  460;  21  Ind  249;  Miles  v.  Buchanan, 36  Ind. 
Belle  v.  Hungate,  13  Ind.  3S2.     Where  490. 

a  demurrer  is  not  insisted  upon  it  is  re-  4  Hargrove    v.  John,    120    Ind.    2S5; 

garded  as  waived.     Dingle  v.  Swain,  15  Hunter  v.  Pfeifer,  108  Ind.  197;  Trisler 

Col.  i20.  24  Pac.  Rep.  876;    Bonner  v.  v.   Trisler,   54   Ind.   172;    Jouchert   v. 

Glenn,   79  Texas,    531,    15    S.  W.    Rep.  Johnson.  10S  Ind.  436. 

1572;     Elvton  Land  Co.  v.  Morgan,  SS  5  Washburn   v.  Roberts,  72  Ind.  213; 

Ala.  434'.  7  So.  Rep.  249.  Williams  v.  West,  2  Ohio  St.  82,  90; 

1  Mitchel  v.  McCabe,  10  Ohio,  405;  Ohio  v.  Cowles,  5  Ohio  St.  S7;   Hol- 

Lnited  States  v.  Boyd,  5  How.  (U.  S.)  brook    v.    Connelly,    6   Ohio    St.    199; 

29,  51;     Sheppard   v.  Shelton,  34   Ala.  Maxwell  v.  Campbell,  S  Ohio  St.  265. 

652;    Warm   v.    McGoon,    2    Scam.    74;  6  Richmond    V.  Tallmage,    16  Johns. 

fohnson  v.  Conklin,  119  Ind.  109,  21  N.  307;  Taylor  v.  Adams,  58  Mich.    1S7; 

E.  Rep.  462;    Earp  v.  Commissioners,  Baker  v.  Dubois,  32  Mich.  92;  Brauns- 


WAIVER. 


U3(J 


Where  a  party  has  full  opportunity  to  file  a  claim  against  a 
fund  in  the  hands  of  the  court  he  waives  his  right  if  he  delays 
to  file  the  claim  until  after  the  final  judgment  has  been  entered.1 
An  objection  that  an  action  or  suit  is  prematurely  brought  must 
be  appropriately  and  opportunely  interposed  or  it  will  be 
waived.2  The  objection  that  an  appeal  was  prematurely  taken 
may  be  waived  in  some  cases,3  but  not  where  the  question  of 
the  time  is  essentially  jurisdictional.4  Objections  to  appeal  or 
supersedeas  bonds  are  waived  unless  seasonably  interposed.5 
A  party  who  relies  upon  a  specific  ground  of  objection  in  the 
trial  court  ordinarily  waives  all  others/'  A  motion  for  non-suit 
is  waived  by  going  on  with  the  trial  and  offering  evidence.7 
Where  the  court  orders  that  a  case  shall  stand  for  trial  by  a 
struck  jury  and  the  party  consents  to  the  order  and  participates 
without  objection  in  the  selection  of  the  jury  under  the  order 
he  is  held  to  waive  all  irregularities  in  selecting  the  jury.s  It 
has  been  held  that  a  party  who  appears  and  cross-examines  a 
witness  without  objecting  waives  a  right  to  challenge  the  order 
of  the  court  directing  the  examination.9  Where  a  defendant  is 
ordered  to  answer  and  he  does  answer  without  objection  he 
can  not  afterwards  question  the  validity  of  the  order,  although 
a  timely  objection  might  have  been  effective.10 


dorf  v.  Felner,  69  Wis.  334,  34  N.  W. 
Rep.  i2i.  See,  generally,  Johnson  v. 
[nghram,  1  Grant's  Case  (Pa.),  152; 
Vandall  v.  Vandall,  13  Iowa,  247; 
Grows  v.  Maine,  etc.,  Co.,  69  Me.  412; 
Wilson  v.  Roots,  1 19  111.  379. 

1  Glade  v.  Schmidt,  15  111.  App.  51. 

2  New  Home  Life  Association  v. 
Hagler,  23  111.  App.  457;  Moore  v. 
Sargent,  112  Ind.  4S4. 

3  D'lvernois  v.  Leavitt,  S  Abb.  Pr.  59; 
Griffin  v.  Cranston,  5  Bosw.  65S. 

4  James  v.  Dexter,  112  111.  489,  492 

5  Stevenson  v.  Steinberg,  32  Cal.  373; 
Gopsill  v.  Decker,  4  Hun.  625. 

6  Vantilburgh  v.  Shann,  4  Zabr.  (N. 
J.)  740;  Allen  v.  Mason,  17  111.  App. 
318. 

7  Brown  v.  Southern, etc., Co. (I' tab), 
26  Pac.   Rep.    579;     Mackey    v.   Balti- 


more, etc.,  Co.,  iS  Wash.  Law  Rep. 
767.  See,  generally,  Bitzer  v.  Wagar, 
83  Mich.  223,  47  N.  W.  Rep.  210.  Con- 
senting to  a  trial  after  unsuccessfully 
objecting  may  sometimes  operate  as  a 
waiver.  Smith  v.  Burlingham,  44  Kan. 
4S7,  24  Pac.  Rep.  947;  Munday  v.  Coll- 
ier, 52  Ark.  126,  12  S.W.  Rep.  240.  See, 
generally,  New  York,  etc.,  Co.  v.  Fifth 
National  Bank,  135  U.  S.  13- ;  Marsh 
v.  Wade,  3  Wash.Ty.477,  17  Pac.  Rep. 
886;  Corbett  v.  City  of  Troy,  53  Hun. 
22S. 

8  Bennett  v.  Syndicate  Insurance  Co., 
43  Minn.  45,  44  N.  W.  Rep.  794. 

9  King  v.  Barnes,  113  N.  Y.  476.  31 
N.  E.  Rep.  1S2.  See  Young  v.  Omo- 
hundro,  6g  Md.  4:4,  16  Atl.  Rep.  120. 

10  Barber  v.  Briscoe.  8  Mont.  214,  19 
Pac.  Rep.  5S9.     See,  upon   the  general 


640 


ERROR   IN  JUDICIAL   PROCEEDINGS 


Demurrer  to  the  Evidence— Waiver  of  Rijrht  to  Jury— It 

is  settled  by  our  decisions  that  a  party,  other  than  the  one  hav- 
ing the  burden,  may  question  the  sufficiency  of  the  evidence 
by  a  demurrer,  although  the  statute  does  not  make  provision 
for  such  a  proceeding.1  If  there  is  a  joinder  in  demurrer  there 
is,  of  course,  a  waiver  of  a  right  to  have  the  main  issue  tried  by 
a  jury,  inasmuch  as  the  joinder  in  demurrer  refers  the  case  upon 
the  main  issue,  that  is,  as  to  the  right  to  recover,  to  the  court 
for  decision,  thus  taking  it  from  the  jury.  But  the  joinder  in 
demurrer  does  not  of  its  own  vigor  necessarily  take  the  ques- 


subject,  Blackburn  v.  Blackburn  (Ky.), 
ii  S.  W.  Rep.  712;  Marx  v.  Crosian 
17  Ore.  393, 21  Pac.  Rep.  310.  It  is  held 
in  accordance  with  the  general  doctrine 
that  parties  must  adhere  on  appeal  to 
the  theories  assumed  in  the  trial  court, 
that  where  parties  act  upon  pleadings 
and  by  their  action  give  the  pleadings 
a  definite  construction,  they  must  abide 
bv  that  construction  on  appeal.  Clark  v. 
City  of  Austin,  38  Minn.  487,  38  N.  W. 
Rep.  615;  Hughes  v.  Wheeler,  76  Cal. 
230,  iS  Pac.  Rep.  3S6.  See  "Holding 
Parties  to  Trial  Court  Theories."  Ante, 
Chapter  XXIV. 

1  Lindley  v.  Kelley,  42   Ind.  294,  and 

cases  cited;  Lyons  v.  Terre  Haute,  etc., 

Co.,   101    Ind.   419;    Lake  Shore,  etc., 

Co.  v.  Foster,  104  Ind.  293.  As  to  what 

a    demurrer    to    the    evidence    admits, 

Willcuts    -'.    Northwestern,    etc.,    Co., 

81     Ind.    300,    and    authorities    cited; 

Palmer  v.  Pittsburgh,  etc.,  Co.,  112  1ml. 

250;  Ruff  v.  Ruff,  85  Ind.431;  Ruddell 

v.  Tyner,  87   Ind.   529;  Talkington  v. 

Parrish,  89  Ind.  202;  Kincaid  v.  Nicely, 

90  Ind.  403;   Ilagenbuck  -'.  McClaskcy, 

Si  Ind.  577;  Nordyke,  etc.,  Co.  v.  Van 

Sant,  99  Ind.  iSS;  Trimble  v.  Pollock, 

77  Ind.  570;    Wrigb.1    V.  Julian,   97  Ind. 

109;    Indianapolis,  etc.,  Co.  v.  McLin, 

ud.  1.35;  Kansas,  etc.,  Co.  v.  Couse, 

17  Kan.  571;    Wilson  :■.   Board,  63  Mo. 

137;   Smith  v.  Hutchinson,  83  Mo.  6S3, 

Smith  v.   Hannibal,  etc.,  Co.,  37 


Mo.  287.  A  party  who  has  the  burden 
can  not  successfully  demur  to  the  evi- 
dence. Fritz  v.  Clark,  80  Ind.  591; 
Standley  v.  Northwestern,  etc.,  Co..  95 
Ind.  2154;  Lyons  v.  Terre  Haute,  etc., 
Co.,  101  Ind.  419.  Upon  a  demurrer  to 
the  evidence  the  evidence  of  the  de- 
murring party  can  not  be  considered. 
Fritz  v.  Clark,. ? upra, overruling  Thom- 
as V.  Ruddell,  66  Ind.  326;  Baker  v. 
Baker,  69  Ind.  399.  See,  also,  Ruff  v. 
Ruff,  85  Ind.  431;  Stockwell  v.  State, 
101  Ind.  1;  Palmer  v.  Pittsburgh,  etc., 
Co.,  112  Ind.  250;  Adams  v.  Slate.  S7 
Ind.  573;  Bethell  v.  Bethell,  92  Ind.  318; 
Reynolds  v.  Baldwin,  93  Ind.  57.  Prac- 
tice in  cases  of  demurrer  to  the  evi- 
dence. Indianapolis,  etc.,  Co.  v.  Mc- 
Linn.  supra;  Plant  v.  Edwards,  85  Ind. 
588;  Griggs  v.  Seeley,  S  Ind.  264;  An- 
drews v.  Hammond,  SBlackf.  540;  Cole 
v.  Driskell,  1  Blackf.  16;  Shields  v.  Ar- 
nold, 1  Blackf.  109;  Doe  v.  Rue,  4 
Blackf.  263;  Pawling  v.  United  States, 
4  Cranch.219;  Columbian  Ins.  Co.  v. 
Catlett.  u  Wheat,  3S3;  Campbell  v. 
New  England  Ins.  Co.,  22  Pick.  135; 
Bulkeley  v.  Butler,  2  B.  &  C.  434.  The 
mode  of  saving  a  question  upon  a  rul- 
ing on  a  demurrer  to  the  evidence  is  to 
object  to  the  ruling  and  to  except  to 
the  overruling  of  the  objection.  Lind- 
ley  v.  Kelley,  42  Ind.  294;  Strough  v. 
Gear,  (.8  Ind.  100. 


WAIVER. 


641 


tion  of  the  assessment  of  damages  from  the  jury  ;  on  the  con- 
trary, the  parties  have  a  right  to  have  the  jury  make  the  assess- 
ment, if  thev  properly  insist  upon  it.  If,  however,  an  assess- 
ment by  the  jury  is  not  asked,  or  no  objection  is  made  to  the 
assessment  by  the  court,  there  is  an  effective  waiver.1 

§  686.   Introducing  Evidence   after  Demurring — Effect  of — If  a 

party  after  a  decision  upon  the  demurrer  to  the  evidence  pro- 
ceeds with  the  case  without  objection,  b}'  offering  evidence  he 
waives  objections  to  the  decision  of  the  court  overruling  his 
demurrer.2  In  the  case  last  instanced  there  was,  in  reality,  a 
waiver  bv  both  parties,  for  it  seems  quite  clear  that  if  the 
plaintiff  had  appropriately  objected  to  the  admission  of  evidence 
after  the  decision  on  demurrer,  the  court  could  not  rightfully 
have  allowed  the  defendant  to  offer  evidence  to  contradict  what 
he  had  deliberately  admitted  by  his  demurrer.  It  is  probably 
true  that  for  cause  shown  the  court  might  permit  the  defendant 
to  abandon  the  position  he  deliberately  chose  to  occupy  in  such 
a  case,3  but,  having  made  a  deliberate  election,  he  could  not  at 


1  In  Strough  v.  Gear,  4S  Ind.  100,  105, 
it  was  said:  "In  the  present  case  the 
jury  was  discharged  upon  the  filing  of 
the  demurrer  and  before  a  decision 
thereon,  and  the  damages  were  assessed 
by  the  court  after  the  demurrer  was 
sustained,  without  objection  on  the  part 
of -the  appellants.  Thev  might  have 
demanded  a  jury,  but  having  failed  to 
do  so,  should  be  regarded  as  having 
waived  a  jury." 

2  The  Supreme  Court  of  Illinois  in  the 
case  of  Joliet,  etc.,  Co.  v.  Shields,  134  111. 
209,  26N.E.  Rep.  ioS6,said:  "Inasmuch 
as  the  demurrer  admits  all  the  facts 
stated  in  it  to  be  true,  and  also  admits 
all  the  inferences  which  can  be  drawn 
from  the  facts,  and  merely  claims  that 
the  testimony  is  not  sufficient  in  law  to 
enable  the  plaintiff"  to  maintain  his  ac- 
tion, the  defendant  necessarily  with- 
draws his  admissions  when  he  neglects 
to  stand  by  his  demurrer,  after  it  is 
overruled,  and  proceeds    to    introduce 

41 


witnesses  to  contradict  the  very  evi- 
dence which  he  has  just  admitted  to  be 
true.  The  action  of  the  court  in  ruling 
upon  the  demurrer  to  the  evidence  is 
based  on  the  defendant's  admission  that 
the  facts  established  by  the  evidence  are 
true.  When  the  defendant  no  longer 
admits  such  facts  to  be  true,  but  tries 
to  prove  that  they  are  false,  he  ought 
to  be  held  to  have  waived  any  error 
based  upon  the  admissions  thus  with- 
drawn. By  his  demurrer  he  takes  the 
case  from  the  jury  and  submits  it  to  the 
court  to  be  decided  as  a  question  of 
law.  By  disputing  the  facts  set  up  in 
the  demurrer  and  appealing  to  the  jury 
to  determine  the  facts  thus  disputed  he 
submits  his  case  to  a  different  tribunal 
and  upon  an  entirely  different  theory." 
3  In  Hartford  City,  etc.,  Co.  v.  Love, 
12^  Ind.  275,  it  was  held  that  it  was 
not  error  to  permit  a  complaint  to  be 
amended  after  a  demurrer  to  the  evi- 
dence was  filed,  and  that  if  the  demur- 


g42  ERROR   IN  JUDICIAL  PROCEEDINGS. 

own  pleasure  and  over  the  objection  of  his  adversary,  take 
another  different  and  inconsistent  position.  The  acquiescence 
of  the  plaintiff  in  such  a  case  as  that  under  discussion  is  a 
waiver,  complete  and  effectual,  but  if  he  had  made  an  oppor- 
tune and  appropriate  objection,  the  defendant  could  not,  as  we 
believe,  have  retraced  his  steps  and  recalled  the  case  from  the 
tribunal  to  which  he  had  voluntarily  submitted  it.  We  think 
it  safe  to  conclude  that  after  a  decision  upon  a  demurrer  to  the 
evidence  the  demurring  party  can  not,  as  of  right,  ask  that  the 
case  be  taken  from  the  court  and  given  to  the  jury,  but  that  if 
the  adverse  party  does  not  object,  there  is  an  effective  waiver. 

§  687.  Motion  for  Direction  to  Jury  to  return  a  Verdict  in  favor 
of  Moving  Party— Effect  of  subsequently  giving  Evidence— The  prin- 
ciple stated  in  the  preceding  paragraph  applies  to  cases  where 
a  party  asks  the  court  to  direct  the  jury  to  return  a  verdict  in 
his  favor.  If  a  defendant  upon  the  close  of  the  plaintiff's  evidence 
moves  the  court  to  direct  a  verdict  in  his  favor,  he  must  stand 
upon  his  motion,  for  if  he  subsequently  introduces  evidence  he 
waives  his  motion.1  By  moving  for  such  an  instruction,  he  asks 
the  court  to  determine  the  case,  thus  withdrawing  it  from  the 
jury,  and  when  he  recedes  from  his  motion  and  introduces  evi- 
dence he  puts  the  case  to  the  jury,  thus  effectively  taking  it 
from  the  court.  The  power  of  the  court  to  withdraw  the  case 
from  the  jury  where  there  is  no  conflict  in   the  evidence  is  un- 

ring  party  had  asked  leave  to  withdraw  in  favor  of  the  plaintiff,  if  the  defend- 

his   demurrer  it   would    have  been  the  ant  rests  his   case'  on   such   testimony 

duty   of  the    court  to   permit   it   to  be  and  introduces  none  in  his  own  behalf ; 

withdrawn.  but  if  he  goes  on  with  his  defense  and 

1  Joliet, etc., Co. v. Shields,  134 111. 209,  puts  in  testimony  of  his  own,  and  the 

26  N.E. Rep.  1086;  Geary  t;.Bangs(Ill.),  jury,  under    proper    instructions,  finds 

27  V  E.  Rep.  462;  Grand  Trunk  Ry.  Co.  against  him  on  the  whole  evidence,  the 
7  .  Cummingfe,  106  U.  S.  700.  In  the  judgment  can  not  be  reversed,  in  the 
case  last  cited  it  was  said:  "It  is  un  absence  of  the  defendant's  testimony, 
doubtedly  true  that  a  case  may  be  pre-  on  account  of  the  original  refusal,  even 

ted   in   which   a  refusal  to  direct   a  though  it  would  not  have  been  wrong 

verdict  for  the  defendant  at  the  close  of  to  give  the  instruction  at  the   time   it 

the  plaintiff's    testimony  will  he   <jood  was  asked." 
ground  for  the  reversal  of  a  judgment 


WAI\  ER 


643 


doubted,1  but,  as  defects  or  omissions  in  the  evidence  of  the 
party  who  has  the  burden  ma}-  be  supplied  by  the  evidence  of 
the  adverse  party,  the  appellate  tribunal  can  not  say  in  the  ab- 
sence of  that  evidence  that  defects  and  omissions  were  not  sup- 
plied ;  on  the  contrary,  as  the  presumption  is  in  favor  of  the 
judgment  of  the  trial  court,  it  must  be  inferred,  in  the  absence 
of  a  countervailing  showing,  that  defects  and  omissions  were 
supplied  or  remedied.  It  follows,  therefore,  that  where  a  party 
does  not  stand  upon  his  motion,  but  goes  on  with  the  case  as 
one  for  the  jury,  all  the  evidence  must  be  before  the  court  on 
appeal  and  the  judgment  in  that  court  must  rest  upon  the  whole 
evidence,  and  not  upon  the  evidence  of  one,  only,  of  the  parties. 

§  688.  Waiver  of  Objections  to  Pleadings  by  Demurring  to  the 
Evidence — There  is  a  seeming  conflict  in  the  cases  upon  the 
question  whether  a  party  waives  objections  to  his  adversary's 
pleadings  by  demurring  to  the  evidence.     The  expressions  in 


1  Improvement  Co.  v.  Munson,  14 
Wall.  442;  Commissioners  v.  Clark,  94 
U.  S.  278,  284;  Chandler  v.  Von  Roe- 
der,  24  How.  (U.  S.),  224;  Pleasants  v. 
Fant,  22  Wall.  1 16;  Mutual  Life  Ins.  Co. 
v.  Snyder,  93  U.  S.393;  Klein  v.  Russell, 
19  Wall.  433,465;  Gunther  v.  Liverpool, 
etc.,  Co.,  134  U.  S.  110;  Griggs  v. 
Houston,  104  U.  S.  553;  Railroad  Co. 
v.  Fraloff,  100  U.  S.  24;  Hall  v.  Dur- 
ham, 109  Ind.  434;  Wabash  Ry.  Co. 
v.  Williamson,  104  Ind.  154;  Carver 
v.  Carver,  97  Ind.  497;  Dodge  v.  Gay- 
lord,  53  Ind.  365,  and  cases  cited;  Moss 
v.  Witness  Printing  Co.,  64  Ind.  [25; 
Templeton  v.  Voshloe,  72  Ind.  134; 
Adams  V.  Kennedy,  90  Ind.  318;  Tyson 
V.  Rickard,  3  Ilarr.  &  J.  (Md.)  109; 
Wheeler  v.  Schroeder,  4  R.  I.  3S3; 
Burke  v.  Lee,  76  Va.  3S6;  Jewell  V. 
Parr,  13  Com.  B.  909,  915;  Clarlin  V. 
Meyer,  75  N.  Y.  260,  266;  Mobile,  etc., 
R.  Co.  v.  Ladd  (Ala.),  9  So.  Rep.  169; 
Williams  v.  Guile,  117  N.  Y.  343,  S.  C. 
6  Law.  Rep.  Anno.  366.  As  to  the 
quantum  of  evidence  sufficient  to  make 


it  the  duty  of  the  court  to  submit  the 
case  to  the  jury,  see  Woods  v.  Wiman, 
122  X.  Y.  445,  27  N.  E.  Rep.  919;  Grif- 
fith v.  Baltimore,  etc.,  Co.,  44  Fed.  Rep. 
574;  Rauber  v.  Sundback  (S.  Dak.),  46 
N.  W.  Rep.  927;  Bunt  v.  Sierra,  etc., 
Co.,  13S  U.  S.  483;  Boyd  v.  Brown,  120 
Ind.  393,  22  X.  E.  Rep.  249;  Bowman  :  . 
Eppinger,  1  X.  Dak.  21,  44  X.  W.  Rep. 
1000;  Robertson  v.  Edelhoff,  132  U.  S. 
614;  Agnew  v.  Adams,  26  So.  Car.  101; 
Carver  v.  Detroit,  etc.,  Co.,  61  Mich. 
584,28  N.  W.  Rep.  721;  Brownfield  v. 
Hughes,i28Pa.  St.  194,  [8  Atl.  Rep.  340; 
Gicrmann  v.  St.  Paul.  etC.,Co.,  42  Minn. 
5,43  N.  W.  Rep.  ^3.  As  suggesting 
the  test  to  determine  whether  the  court 
may  direct  a  verdict,  see  Bulger  V. 
Rosa,  1  [9  \.  V.  459,  24  X.  E.  Rep. 
Chase  v.  Alley,  82  Me.  234,  19  Atl.  Rep. 
397;  Hall  V.  Stevens,  in.  N.  Y.  201.  5 
Law.  Rep.  Anno.  S02;  Farnum 
Pitcher,  151  Mass.  470,  j  1  \  1"  K 
590;  Corning  ;•.  Troy,  etc.,  Co.,  j,\  N 
Y.  577;  Morgan  :•.  Durfee, 69  Mo.  469; 
Ensminger  :•.  Mclntire,  2^  Cal.  593. 


^44  ERROR   IN  JUDICIAL  PROCEEDINGS. 

some  of  the  cases  seem  to  indicate  that  such  objections  are 
waived.1  But  the  direct  and  explicit  decisions  assert  a  differ- 
ent doctrine,  for  they  declare  that  the  objections  are  not  waived.2 
We  think  the  true  rule  is  that  such  objections  as  go  to  the  mer- 
its are  not  waived,  but  that  no  defects  in  the  pleadings  can  be 
considered  in  determining  the  demurrer."'  A  party  who  de- 
murs to  the  evidence  does  not  waive  the  right  to  insist  that  a 
recovery  can  be  had  only  under  the  issue  made  by  the  plead- 
ings ;  on  the  contrary,  his  demurrer  objects  that  the  cause  of 
action  stated  is  not  established  by  the  evidence.  It  is,  there- 
fore, not  sufficient  to  entitle  the  plaintiff  to  a  judgment  upon 
demurrer  that  the  admitted  facts  would  entitle  him  to  some 
judgment.  If  the  admitted  facts  do  not  establish  the  cause  of 
action  stated  in  the  complaint  it  will  be  prejudicial  error  to 
overrule  the  demurrer.4 

§  689.  Effect  of  a  Demurrer  upon  the  Right  to  make  rulings  upon 
the  Evidence  Available — As  the  demurrer  confesses  that  the  facts 
are  true  it  may  well  be  held  that  the  party  who  demurs  waives 
all  objections  to  the  competency  of  the  evidence.  And  so  it 
has  been  held/'     In  one  of  our  cases  it  was  declared  in  very 

1  Stockwell  v.  State,  ioi  Ind.  i,  5;  ficient  to  maintain  the  issue.  And  the 
Lindlev  v .  Kellev,  42  Ind.  294.  judgments  of  the  court  upon  such  evi- 

2  McLean  v.  Equitable,  etc.,  Co.,  100  dome  will  stand  in  place  of  the  verdict 
Ind.  127,  135;  Bish  v.  Van  Cannon,  94  of  the  jury.  And  after  that,  the  de- 
Ind.  263;  United  States  Bank  v.  Smith,  fendant  may  take  advantage  of  defects 
11  Wheat.  171.  In  the  case  last  cited  in  the  declaration  by  amotion  in  arrest 
it  was  said:  "It  is  said,  however,  on  of  judgment,  or  by  writ  of  error.  But 
the  part  of  the  plaintiffs  that  this  court  the  present  case  being  brought  here  on 
can  not  look  beyond  the  demurrer  to  a  writ  of  error,  and  the  defendant,  hav- 
the  evidence,  ami  inquire  into  defects  ing  the  judgment  below  in  his  favor, 
in  the  declaration.  This  position  can  may  avail  himself  of  all  defects  in  the 
not  be  sustained.  The  doctrine  of  the  declaration  that  are  not  deemed  cured 
King's  Bench  in  England,.in  the  case  of  by  the  verdict."  See,  also,  Stolle  v. 
Cort  v.  Birbeck,  1  Doug.  21S.  that  upon  .Etna,  etc.,  Ins.  Co.,  10  W.  Va.  546. 

a   demurrer  to  evidence   the   party  can  3  2  Tidd's  Pr.  (4  Am.  ed.)  865. 

not  take  advantage  of  any  objections  to  4  Palmer  V.    Chicago,  etc.,    Co.,    112 

the    pleadings   does   not  apply.      By  a  Ind.  250. 

demurrer  to  the  evidence,  the  court  in  5  Miller  v.  Porter,  71  Ind.  521;   Rad- 

which  the  cause  is  tried  is  substituted  cliff  v.  Radford,  96  Ind.  482;   Stockwell 

in   place   of  the   jury.     And   the   only  v.  State,    101    Ind.   1,  5.      It    was   well 

question  is  whether  the  evidence  is  suf-  said,   in   Chapize  V .  Bane,  1   Bibb.  612: 


WAIVER.  645 

broad  terms  that  a  motion  for  a  new  trial  is  not  proper  where 
there  is  a  demurrer  to  the  evidence,1  but  we  think,  that,  while 
it  is  true  that  the  demurring  party  waives  all  objections  to  the 
admissibility  of  the  evidence  establishing  the  facts  confessed 
by  his  demurrer,  it  is,  nevertheless,  true  that  the  opposite  party 
does  not  waive  exceptions  taken  by  him  to  the  exclusion  of 
evidence  which  he  appropriately  offered.  It  is  obvious  that 
there  is  a  radical  difference  between  a  case  where  the  evidence 
offered  by  the  party  against  whom  the  demurrer  is  directed  is  ex- 
cluded and  a  case  where  evidence  is  admitted,  for  the  party  whose 
evidence  is  kept  out  by  the  objections  of  his  adversary  does  noth- 
ing to  waive  his  objections  to  the  ruling  excluding  the  evidence. 
If  a  party  can  by  demurring  to  the  evidence  of  his  opponent  de- 
prive the  latter  of  competent  evidence  he  virtually  takes  away 
a  right  which  the  opponent  has  done  his  best  to  save  and  that, 
too,  where  there  is  no  fault  on  his  part.  This  would  certainly 
be  wrong.2  In  another  case  it  is  said  in  a  general  way  that  a 
motion  for  a  new  trial  is  not  proper  except  where  it  relates  to 
the  assessment  of  damages,3  but  in  that  case  the  question  was 
not  before  the  court,  so  that  it  can  not.  be  justly  said  that  there 
was  any  adjudication  upon  it.  We  think  it  very  clear  that 
there  are  cases  where  the  party  adverse  to  the  one  who  demurs 
may  save  objections  by  a  motion  for  a  new  trial.  If  this  be 
not  true,  then,  it  must  be  true  that  there  are  cases  where  one 
party  by  his  own  action  may.  deprive  his  adversary  of  a  right, 
although  the  party  deprived  of  the  right  is  without  fault.  Such 
a  conclusion  is  in  conflict  with  principle.  It  would  place  a 
vigilant  and  diligent  party  wholly  at  the  mercy  of  his  opponent 
and  this  no  just  principle  will  tolerate. 

§  690.    Waiver  as  Affecting  the  Mode  of  Trial— Where  a  party 

fails  to  insist  upon  the  right  to  a  trial  in  a  particular  mode  and 

"The  particular  manner  in  which  an  and  it  is  explicitly  declared  that  the  party 

admitted  truth  has  been  introduced  into  whose  evidence  i>  excluded  is  not  de- 

the  cause  as  evidence,  does  not  seem  to  prived  of  his   right    to   insist   upon  his 

be  of  any  importance."  objections  on  appeal.     The  decision  in 

1  Ruddell  v.  Tyner,  S;  Ind.  529.  the   case   here   cited,   in    effect,  denies 

2  Washburn    V.    Hoard,    104    Ind.   321.  some   of  the  statements    in    Ruddell    V. 
322;   Huff  v.  Cole,  45   Ind.  300.     In  the  Tyner,  supra. 

case  first  cited  the  question  is  discussed        3  Strough  v.  Gear,  .p  Ind.  100. 


(J46  ERROR   IN  JUDICIAL  PROCEEDINGS. 

submits  to  a  trial  in  a  mode  directed  by  the  court,  he  isras  a 
general  rule,  precluded  from  making  an  objection  to  the  mode 
of  trial  adopted  after  the  judgment  or  decree  has  been  entered. 
It  is,  indeed,  true,  as  a  rule,  that  objections  to  the  mode  of  trial 
must  be  interposed  before  entering  upon  the  trial.  This  rule  is 
in  harmony  with  the  general  doctrine  that  a  party  must  object 
at  the  proper  stage  of  the  proceedings,  and  this  ordinarily  re- 
quires that  the  objection  be  made  at  a  time  when  it  will  not 
compel  the  court  to  retrace  its  steps.  It  is  not  the  right  of  a 
part)-  to  demand  that  action  taken  by  the  court  shall  be  set  aside 
and  the  proceedings  begun  anew,  so  that  it  is  the  duty  of  a 
party  to  present  his  objections  before  entering  upon  the  trial. 
The  rule  that  a  party  must  appropriately  and  seasonably  object 
to  the  mode  of  trial  ordered  by  the  court  is  illustrated  by  many 
cases.  Thus,  where  a  party  makes  no  objection  to  an  order  re- 
ferring a  case  to  a  referee  or  to  a  master  commissioner,  he 
waives  the  objection  that  the  case  is  not  triable  in  such  a  mode." 
So,  atrial  before  a  master  without  an  objection  waives  the  right 
to  insist  on  appeal  that  no  order  of  reference  was  made.2  Again, 
a  party  who  enters  upon  a  trial  by  the  court  can  not  success- 
fully object  after  the  court  has  proceeded  with  the  trial  that  the 
case  is  one  for  the  jury,  nor,  on  the  other  hand,  can  a  party 
who  does  not  seasonably  object  to  a  trial  by  jury,  afterwards 
successfully  urge  that  the  case  should  have  been  tried  by  the 
court.3 

1  Baird  v.  Mayor,  74  N.  Y.  382;  s  Sheets  v.  Bray,  125  Ind.  33,24  N.  E. 
Trenholm  v.  Morgan,  28  So.  Car.  26S,  Rep.  357;  Jarboe  v.  Severin,  112  Ind. 
5  S.  E.  Rep.  721;  Grant  v.  Reese,  82  572;  Sprague  v.  Pritchard,  10S  Ind. 
N.  C.  72;  Harris  v.  Shaffer,  92  N.  C.  491;  Taggart  v.  Tevanny,  1  End.  App. 
30.  See,  generally,  Allis  v.  Day,  14  339.354;  Strauss  t\  Cooch,  47  Ohio  St. 
Minn.  516;  Strong  v.  Willey,  104  U.  S.  115.24  N.  E.  Rep.  1071;  Heacock  v. 
q  1 2 ;  Rhodes  v.  Russell,  32  So.  Car.  Hosmer,  109  111.  245;  Brown  v.  Lawler, 
^s^,  10  S.  E.  Rep.  82S.  21  Minn.  327;  Brown  v.  Nagel,  21  Minn. 

2  Spencer  v.  Levering,  S  Minn.  461,  415;  Van  Orman  v.  Merrill,  27  Iowa. 
.('.7.  In  the  case  cited  it  was  said:  476;  Gibbs  v.  Coonrod,  54  Iowa.  730; 
"  The  other  point- made  by  the  plaintiff  Weaver  v.  Kintzlejr,  58  Iowa,  191; 
in  error,  to  wit,  that  the  record  does  not  Hatch  v.  Judd,  29  Iowa.  95;  Taylor  v. 
show  an  order  referring  the  cause  to  a  Adair,  22  Iowa,  279:  Byers  v.  Roda- 
referee    for    trial,    should     have    been  baugh,    17    Iowa,    53.     See,  generally, 

1  in  the  court  below,  it  can  not  be     Lace  v.  Fixen,  39   Minn.  46,  38  N.  W. 
made  here  for  the  first  time."  Rep.  762;    Haves  v.  Clark,  S4  Cal.  272, 


WAIVER. 

§691.   Rulings  Respecting  Procedure  oil  the  Trial— 111  astral 
Cases — A  party  who  fails   to  exercise  reasonable  diligence  and 

to  employ  the  usual  and  appropriate  methods  of  objecting  to 
those  who  are  to  act  as  triers  of  his  case  can  not  successfully  ob- 
ject to  their  competency  or  qualifications  on  appeal.  This  gen- 
eral rule  is  subject  to  the  limitation,  mentioned  in  a  prior  para- 
graph of  this  chapter,  that  a  party  does  not  waive  a  matter  oi 
which  he  is  excusably  ignorant,  but,  as  substantially  remarked 
in  the  paragraph  referred  to,  the  ignorance  must  be  excusable, 
and  excusable  it  can  not  be  if  the  party  has  not  been  vigilant 
and  diligent.  The  qualification,  that  ignorance  must  be 
excusable,  is  of  great  practical  importance  and  so  frees  the 
general  rule  from  restriction  that  practically  there  are  compara- 
tively very  few  cases  which  it  does  not  control.  The  rule  that 
a  party  who  does  not  object  to  his  triers  applies  to  the  person 
who  sits  as  judge,  for  the  failure  to  seasonably  and  appropriately 
object  to  his  competency  precludes  the  party  under  a  duty  to 
object  from  successfully  urging  the  objection  on  appeal  as  a 
cause  for  a  reversal  of  the  judgment  from  which  the  appeal  is 
prosecuted.1  Objections  to  the  competency,  qualification 
and  swearing  of  jurymen  are,  as  a  general  rule,  waived  un- 
less   seasonably  and    appropriately  made,2   but    where   proper 

24  Pac.  Rep.  nf>;   Hauser  v.  Roth,  37  State.  113  Ind.  295;  Bartley  v.  Phillips, 

Ind.  89;    Griffin  v.  Pate.  63  Ind.  273;  114  Ind.  1S9;  Feaster   v.  Woodfill,  ^3 

Ketcham   v.    Brazil,  etc.,  Co.,  SS   Ind.  Ind.  493;  Powell  r.  Powell.  104  Ind.  iS; 

515;   Love    v.    Hail,  76  Ind.  326;   Odell  Greenwood  v.   State,   116  Ind.  4^ 

v.  Reynolds,  40  Mich.  21.    If  objection  N.   E.  Rep.  333;    Cargar  v.  Fee,    119 

to  the  mode  of  trial  is  made  it  will  ordi-  Ind.    536;  Adam     v.    Gowan.  S9  Ind. 

narilv  be  waived   unless  the  ruling   is  35S;  Rogers  v.  Beauchamp,  102  Ind.  33; 

specified  as  cause  for  a  new  trial  in  the  Board  v.  Courtney,  105  Ind.  311;   Lillie 

proper  motion.   Huffmond  r.  Bence.  12S  v.  Trentman  (Ind.).  29  N.  E.  Rep.  405. 

Ind.  131;   Ketcham  v.  Brazil,  etc..  Co.,  s  See  "  Impaneling   the  Jury."     Do- 

88  Ind.  515.  Ian    V.    State.    [22    liul.  141;    Cnfried    V. 

'Stearns  v.  Wright.  51   X.  II.  600;  Baltimore,  etc.,  Co.,  34   W.  Va.  260,12 

Peebles  v.  Rand,  43   N.   H.337;   Moses  S.  E.  Rep.  512;   Sandford   Tool  Co.  r. 

u.Julian,  45  N.  H".  52;  Dolan  v.  Church,  Mullen,  1   Ind.  A.pp.  204.     The  general 

iWyo.  1S7;  State  r.Whitncv.  7  Oregon,  doctrine  that  a  party  who  has  an  oppor- 

}86;  State  1  .Voorhies,  41  La.  Ann.  567,  tunity  to  object  to  the  persons  called  to 

6  So.  Rep.S2C>;  Bowen  v.  Swander,  121  trv  his  case  must  seasonably  avail  him- 

Ind.  164;   Hayes  v.  Sykes,  120  Ind.  1S0;  self  of  the  right  applies  to  proceedings 

Littleton?'.  Smith,  119  Ind.  230;  Smurr  before     inferior    tribunals.      Matter     of 

v.  State,   toe   Ind.    125;   Schlungger  v.  New   York,  etc.,    Co.,     35    Hun.    575; 


,;|S  ERROR   INJUDICIAL   PROCEEDINGS. 

diligence  is  exercised  and  the  incompetency  of  a  juror  is  not 
discovered  until  after  the  verdict,  the  ignorance  of  the  party  is 
excusable,  and  he  may  then  successfully  urge  a  valid  ob- 
jection.1 A  party  dissatisfied  with  the  answers  of  the  jury  to 
interrogatories  must  move  to  recommit  for  more  specific  an- 
swers or  he  will  waive  his  right  to  insist  on  appeal  that  the  an- 
swers of  the  jury  are  not  sufficiently  specific.2 

§  692.  Rulings  on  the  Trial — General  Doctrine — What  is  not 
objected  to  on  the  trial  is,  wherever  the  ruling  relates  entirely 
to  trial  procedure,  waived,  and  so  effectively  waived  as  to  be 
unavailing  on  appeal.  The  rule  to  which  we  have  often  referred 
that  rulings  on  the  trial  not  effectively  questioned  by  specific  ob- 
jections are  waived,  is  one  of  very  wide  scope.  It  is,  it  may  be 
well  enough  to  say  here,  although  the  subject  is  hereafter  dis- 
cussed, not  sufficient  to  object,  for  the  objection  must  be  sup- 
plemented by  an  exception.  The  failure  to  except  is,  in  effect, 
a  waiver  of  the  objection,  although  the  objection  ma)'  be  season- 
ably interposed  and  well  stated.  There  is,  therefore,  reason 
for  affirming  that  an  objection  adequately  stated  may  be  waived 
bv  silence  or  inaction.  Nor  is  it  always  sufficient  to  object  and 
except,  for,  as  a  general  rule,  an  opportunity  for  review  must 
be  given  the  trial  court  by  the  appropriate  motion.3 

Cauldwell  v.  Curry,  93  Ind.  363;  Brad-  Jones  r.Van  Patten,  3  Ind.  107;  Heaston 
ley  v.  City  of  Frankfort,  99  Ind.  417;  V.  Colgrove,  3  Ind.  265;  McKinney  V. 
Towns  v.  Stoddard,  30  X.  II.  23;  Ips-  Springer,  6  Ind.  453;  Zehnor  v.  Beard, 
wich  v.  Essex  Co.,  10  Pick.  519;  Town  S  Ind.  96;  Vance  v.  Cowing,  13  Ind. 
of  (■roton  v.  Hurlburt,  22  Conn.  17S;  460;  Dickerson  v.  Turner,  15  Ind.  <; 
fohns  v.  Hodges,  60  Md.  215,  S.  C.  45  Ferris  --.Johnson,  27  Ind.  247;  Ringle 
Am.  Rep.  722;  Wassum  v.  Feeney,  121  v.  Bicknell,  32  Ind.  369;  State  v.  Pro- 
Mass.  93;  Hilltown  Road,  18 Pa.  St.  233;  basco,  46  Kan.  310,  26  Pac.  Rep.  749; 
!'  pie  v. Taylor, 34 Barb. 481;  Howard  Hughes  v.  Commonwealth  (Ky.),  14  S. 
v.  Sexton,  1  Denio.  440;  Browning  V.  W.  Rep.  682;  Fifth  Avenue  Bank  v. 
Wheeler,  24  Wend.  25S.  Webber,    27    Abbott's    N.     Cases,    1; 

1  Rhodes  v.  State,  12S  Ind.  1S9.  Thomas  v.  Griffin,  1  Ind.  App.  457,  27  N. 

2  Dockerty  v.  Hutson,  125  Ind.  102;  E.  Rep.  754;  Thrasher  v.  Postel,  79  Wis. 
McElfresh  v.  Guard,  32  Ind.  40S;  Vater  503,  4S  N.W.  Rep.  600;  Hayes  v.  Solo- 
:.  Lewis,  36  Ind.  288;  Reeves  v.  Plough,  mon,  90  Ala.  520.  7  So.  Rep.  921;  Brans- 
41  Ind.  204.  ford  v.  Karn  (Va.),  12  S.  E.  Rep.  404. 

3  Comparet  v,  Hedges,  6  Blackf.  416; 


CHAPTER  VII. 


CURING    ERRO  R. 


5  693.    Origin  and  nature  of  the  power 
to  cure  error. 

694.  Limitations  of  the  power — Ex- 

ceptional cases. 

695.  Exercise  of  the  power  to  cure 

errors. 

696.  Asking  for  time  in  cases  where 

a  ruling  is  changed. 

697.  Rulings  made  during  the  forma- 

tion of  issues. 

69S.  Curing  error  in  the  admission 
of  evidence  by  supplementing 
it  with  evidence  making  it 
competent. 

699.  Proving  the  same  facts  by  com- 
petent testimony  sometimes 
obviates  the  error  in  admitting 
incompetent  evidence. 


§  700.    Withdrawal  of  incompetent  ev- 
idence. 

701.  Instructions  to  disregard  incom- 

petent evidence. 

702.  Exceptional  cases. 

703.  Effect   of   sustaining    a    motion 

to  strike  out  incompetent  tes- 
timony. 

704.  When  a  party  can  not  withdraw 

evidence  over  the  objection  of 
his  adversary. 

705.  Curing  error-  in  instructions. 

706.  Refusal  of  instructions. 

707.  Subsequently  admitting  evidence 

once  excluded. 
70S.   Miscellaneous  instances. 


§  693.  Origin  and  Nature  of  the  Power  to  Cure  Error— Resident 
in  every  court  of  general  jurisdiction  is  the  power  to  rectify 
mistakes  and  correct  errors  into  which  it  has  fallen  regarding 
matters  of  law,  and  this  power  may,  as  a  general  rule,  be  ex- 
ercised upon  discovering  the  mistake  or  error  at  any  time  be- 
fore the  case  is  terminated  by  a  final  judgment.  The  power 
may,  indeed,  be  exercised  after  final  judgment,  as,  for  instance, 
in  cases  where  a  new  trial  is  granted  or  a  motion  in  arrest  is 
sustained.  But  reviewing  questions  upon  such  motions  belongs 
to  a  different  branch  of  our  general  subject  rather  than  to  the 
special  subject  of  the  present  chapter,  and  we  mention  the  topic 
here  lest  it  be  supposed  that  we  mean  to  be  understood  as  af- 
firming that  the  power  to  correct  errors  or  rectify  mistakes  can 
not  be  exercised   after  final   judgment.     That  we  do  not  mean, 

'  (649) 


650  ERROR    IN  JUDICIAL  PROCEEDINGS. 

lor.  as  will  elsewhere  appear,1  we  assert  the  power  to  review 
and  correct  even  after  a  final  judgment,  but  at  present  our  pur- 
pose is  to  consider  the  nature  and  extent  of  the  power  to  cure 
or  heal  error  during  the  formation  of  issues  or  the  progress  of 
a  trial.  The  rule  that  courts  may  cure  errors  in  their  rulings 
is  a  very  ancient  one.  The  underlying  principle  is  that  which 
constitutes  the  foundation  of  the  doctrine  that  nunc  pro  tunc 
orders  and  entries  may  be  made  while  the  proceedings  are  in 
fieri,  and,  although  there  is  a  difference  between  curing  error 
and  making  nunc  pro  tunc  entries  or  orders,  the  general  prin- 
ciples involved  are  closely  allied  and  the  early  discussions  upon 
the  right  to  make  such  orders  or  entries  are  pertinent  to  the 
subject  of  curing  or  healing  errors.2  The  power  to  order  or 
permit  an  act  to  be  done  now  for  then  is  not  conlined  to  acts  of 
the  court  itself,  for  it  may  extend  to  the  acts  of  the  parties. 
Thus,  a  party  may  be  permitted  to  file  an  affidavit  now  for  then 
even  though  the  affidavit  is  requisite  to  jurisdiction  and  ought, 
in  strictness,  to  have  been  hied  at  the  time  the  action  -was  com- 
menced.3 The  general  power  to  permit  parties  to  file  papers 
now  for  then,  to  make  nunc  pro  time  entries,  and  to  permit 
amendments  to  be  made  having  a  retroactive  effect,  is  nothing 
more  at  bottom  than  the  inherent  right  existing  in  courts  to 
rectify  mistakes,  cure  errors  and  heal  defects.  This  right  is 
exercised  in  cases  where  orders  improvidently  made  are  va- 
cated,4 where  certificates  to  records  are  directed  to  be  amended,5 
and  in  many  other  cases,  as  will  hereafter  be  fully  shown.     We 

1  Post,  "  Presenting  an  Opportunity  Shepherd    v.   Pepper,    133     U.    S.   626. 

for  Review,"  Chapter  X  I  V.  See,  generally,  Crum  v,  Elliston,  33  Mo. 

3  Lord    Mohun's    Case,    6    Mod.   59;  App.  591;    Horn   v.  Indianapolis    Nat. 

Hodges  v.  Templer,  6Mod.  191;  Mayor  Bank,  125  Ind.  381,  25  N.  E.  Rep.  ss§; 

of    Norwich    ,v.   Berry,   4   Burr.   2277;  Montgomery  Co.  v.  Auchley,  103  Mo. 

Mitchell    v.    Overman,    103    U.   S.  62;  492,  15  S.  W.  Rep.  626;   State  v.  Farrar, 

Shephard     ••.    Brenton,    20    Iowa,    41;  104  N.  C.  702,   10  S.  E.   Rep.  iqg;  Se- 

Hess  v.  Cole.  23  N.J.  Law,  1  [6;    Deal  curity  Co.  v.  Arbuckle,  123  Ind.  518. 

:■.  I  loiter,  6  Ohio  St.  22S.     The   power  *  State  v.  New  Orleans,  43  La.  Ann. 

is   an    inherent  one    inasmuch   as    all  441,  9   So.   Rep.  643.      See,  generally, 

courts  of  justice    must   have    power  to  Hubbard  v.  Camperdown  Mills,  26  So. 

prevent    wrong    results    from    flowing  Car.  581,  2  S.  E.  Rep.  ^76. 

from    their    own    errors.     Chissom    v.  &  Idaho,  etc.,  Co.  v.  Bradbury,  132  U. 

Barbour,  100  Ind.  1.  S.  509. 

3  Carr    v.    Fife,    45    Fed.    Rep.   209; 


CURING   ERROR.  651 

have  indicated,  in  outline  at  least,  the  general  nature  of  the 
power  and  have  shown  that  it  has  long  existed,  and  that  is  all  that 
we  need  do  at  the  outset ;  so  much  seemed  necessary  in  order 
to  prepare  the  way  for  the  consideration  of  particular  instances 
of  the  general  doctrine  we  are  endeavoring  to  state,  but  the 
doctrine  is  by  no  means  confined  to  the  class  of  cases  of  which 
that  instanced  is  a  type.  It  is,  of  course,  essential  that  the 
party  to  whom  the  change  in  a  ruling  is  adverse  should  request 
an  opportunity  to  meet  the  new  condition  produced  by  the 
change,  for  if  he  does  not  make  the  proper  request  he  will  lose 
his  right  by  waiver.  The  request  must  be  opportunely  and 
properly  made,  it  must  be  brought  into  the  record,  and  the 
necessary  exception  must  be  entered.  This  is  indispensably 
necessary,  inasmuch  as  there  is  seldom  error  in  the  change 
itself;  the  available  error  is  in  denying  the  request  for  time  or 
opportunity  to  meet  the  case  as  the  change  presents  it. 

§  694.  Limitations  of  the  Power— Exceptional  Cases— Some  of 
the  courts  hold  that  a  ruling  may  be  so  radically  wrong  and  so 
manifestlv  injurious  that  the  error  can  not  be  cured  by  a  change 
in  the  ruling.  We  think  there  may  be  cases,  although  rare 
and  extreme  ones,  where  the  error  may  penetrate  so  deeply 
and  be  so  widely  influential  that  it  can  not  be  cured  by  a  sub- 
sequent ruling.  Thus,  if  evidence  of  a  character  likely  to  in- 
flame the  prejudices  of  the  jurors  is  persistently  given  to  the 
jury  over  objection,  we  think  that  a  subsequent  withdrawal  of 
the  objectionable  evidence  will  not  always  cure  the  error. 
While  it  is  no  doubt  true  that  in  the  very  great  majority  of 
cases  the  withdrawal  of  incompetent  evidence  does  cure  the 
error  committed  in  suffering  it  to  go  to  the  jury,  there  are.  as 
we  believe,  rare  instances  where  the  mischief  done  is  incura- 
ble. So,  where  the  court  improperly  makes  a  remark  efl'eei- 
ively  and  stronglv  discrediting  the  testimony  of  a  witness  the 
withdrawal  of  the  remark  can  not  always  repair  the  injury,  for 
so  much  depends  upon  the  behavior  and  manner  of  a  witness 
that  the  effect  of  such  a  remark  can  not  always  be  dissipated 
by  a  withdrawal  or  by  an  instruction  to  disregard  it.  There 
must,  it  seems  to  us,  be  cases  where  the  wrong  ruling  exerts 
such  a  stromr  influence  that  its  effect  can  not  be  destroved  ex- 


(552  ERROR  IN  JUDICIAL  PROCEEDINGS. 

cept  by  granting  a  new  trial.  Although  such  cases  are  very 
rare,  and  must  be  decisively  impressed  with  peculiar  and  ex- 
traordinary features  to  take  them  out  of  the  general  rule,  they 
do  exist.1 

§  695.  Exercise  of  the  Power  to  Cure  Errors — The  power  to  cure 
error  by  withdrawing,  abrogating  or  changing  rulings,  com- 
prehensive as  it  is,  can  not  be  arbitrarily  exercised  to  the  in- 
jury of  a  litigant.  As  the  court  is  presumed  to  adhere  to  a 
theory  declared  or  indicated  by  a  ruling-  it  can  not  depart  from 
that  theory  without  giving  a  party  who  has  acted  upon  it  an 
opportunity  to  meet  the  situation  brought  about  by  a  change 
of  ruling  when  the  proper  request  is  duly  preferred.  Thus,  if 
by  a  ruling  upon  a  demurrer  to  an  answer  the  court  clearly  in- 
dicates that  the  defendant  will  not  be  allowed  to  give  evidence 
in  support  of  the  defense  held  insufficient,  the  court  can  not 
change  its  ruling  and  allow  evidence  to  be  introduced  in  sup- 
port of  such  a  defense  without  giving  the  plaintiff  an  opportu- 
nity to  prepare  to  meet  the  new  theory  indicated  and  declared 
by  the  change  in  the  ruling.  The  case  adduced  as  an  illustra- 
tion is  but  a  type  or  representative  of  many,  for  it  may  very 
often  happen  that  a  change  in  a  ruling  will  work  injustice  un- 
less a  party  is  afforded  a  reasonable  opportunity  to  prepare  for 
trial,  or  for  proceeding  with  the  trial,  under  the  changed  con- 
dition of  affairs. 

§  696.   Asking  Time  in  Cases  where  a  Ruling  is  Changed — It  is, 

of  course,  not  even-  ruling  reversing,  vacating,  or  changing 
prior  rulings  that  will  entitle  a  party  to  a  postponement  or  con- 
tinuance ;  on  the  contrary,  it  is  only  where  the  change  is  so 
radical  as  to  make  it  manifestly  unjust  to  compel  him  to  pro- 
ceed, that  he  can  rightfully  ask  that  proceedings  may  be  de- 
laved.  There  are,  however,  cases  where  justice  requires  that 
a  trial  be  postponed.  In  cases  where  there  is  a  right  to  a  post- 
ponement, the  party  entitled  to  it  should  make  the  necessary 
showing  and  request  the  court  to  postpone  the  trial.     This  rule 

1  Furst   v.  Second   Avenue,  etc.,  Co.,     Y.  299,  302;  O'Sullivan  v.  Roberts,  39 
72  \.  V.  542;  Erben  v. Lorillard,  uj  N.     X.  Y.  360. 

2  Ante,  §  591. 


CURING   ERROR.  653 

is  supported  by  the  numerous  cases  which  hold  thai  where  an 
amendment  is  ordered  the  party  who  desires  a  postponement 
must  make  the  appropriate  request,  and  it  is  in  harmony  with 
the  rules  declared  in  many  kindred  instances. 

§  697.  Rulings  made  during  the  Formation  of  Issues— It  is  quite 
clear  that  courts  possess  the  power  to  correct  rulings  upon  mo- 
tions or  demurrers  at  any  time  before  the  issues  are  closed.1 
The  power  may,  indeed,  be  exercised  after  the  close  of  the 
issues  and  during  the  progress  of  the  trial.  But,  upon  the  prin- 
ciple stated  in  a  former  paragraph,  a  change  in  a  ruling  upon  a 
pleading  may  in  some  instances  entitle  a  party  who  appro- 
priately and  seasonably  requests  it  to  a  postponement  of  the 
case  in  order  to  prepare  for  trial,  or  other  action,  under  the  new 
theory  created  by  the  change  of  a  former  ruling.  The  doctrine 
that  the  court  may  cure  error  by  vacating  or  changing  a  wrong 
ruling  made  in  the  formation  of  the  issues  extends  to  cases  where 
the  court  affords  the  party  an  opportunity  to  make  the  same 
proof  that  he  could  have  made  had  the  original  ruling  been  en- 
tirely correct.  Thus,  where  the  court  erroneously  strikes  out 
the  answers  of  a  defendant,  but  subsequently  opens  the  way  to 
him  to  give  all  the  evidence  he  could  have  given  had  the  motion 
to  strike  out  been  overruled,  the  error  in  sustaining  the  motion 
is  cured.2     While  there  can  be  no  doubt  that  the  rule  is  that  an 

1  First  National  Bank  of  Huntington  Mr  Murray.  75  Iowa.  173.  39  X.  W.  Rep. 

v.  Williams,  1  ;:<>  Ind. 423.      In  Mitchell  255:    Palmer  V.  Arthur.  131  U.   S.  60. 

v.  Friedley,  126  Ind.  545.it  was  held  2  McNamara  v.  Estes,  22  Iowa,  246. 

that  where  the  court  had  heen  requested  In  the  ease  cited  Judge  Dillon,  sp< 

to  make  a  special  finding,  but  had  over-  for  the  court,  said:     "The  eourt.it  is 

looked  or  forgotten  the  request,  it    was  true,  struck  their  answer  from  the  files. 

not  error  to  withdraw  a  general  finding  If  the  action  of  the  court  were  admitted 

it  had  announced.     See  Derrick V.  Em-  to  he    erroneous,    it    was    cured   by    the 

mens,  3S  N.  Y.   Supp.  481.     See,  gen-  subsequent  action  of  the  court,  allowing 

crally,  Hughes  V,  Wheeler,  76  Cal.  230,  the  appellants  the  opportunity  to  prove 

18  Pac.  Rep.  3S6.     An  error  in  ruling  that    no    levy  or  assessmenl   was  ever 

on  the    pleadings   may    he   cured  bv  the  made."      The     principle     that   if   ample 

decree.     Meek  v.  Spracher  (Va.),  12  S.  opportunity   is  given  a  party  to  intro- 

E.  Rep.  397.     There  are  many  cases  in  i.hnv    evidence,   an    error  in    a    former 

which  it  has  been  held  that  errors   in  ruling  is  healed  is  asserted   in    the  ca6e 

rulings  on  the   pleadings   are  cured  by  of  the    Louisville,    etc.,    Co.   v.    Falvey, 

special    findings    or    special    verdicts.  104  Ind.  409;  Mann  v.  Maxwell,  83  Me. 

Miller  v.  Louisville,  etc.,  Co.,  12S  Ind.  146.  21   All.  Rep.  844;   Elwell  v.  Fabre, 

97,  27  N.  E.  Rep.  339;    Carruthers  v.  13  N.  Y.  Supp.  829. 


654  ERROR    IN  JUDICIAL   PROC1  EDINGS. 

error  may  be  cured  by  affording  a  party  full  opportunity  to 
avail  himself  of  all  the  rights  he  could  have  made  available 
had  the  original  decision  been  correct,  still,  the  rule  is  one  to 
be  applied  with  caution  and  care.  If  the  opportunity  offered  is 
not  ample,  the  error  ought  not  to  be  regarded  as  cured.  Thus, 
for  illustration,  if  the  court  should  sustain  a  demurrer  to  an  an- 
swer, and  upon  the  trial  should  change  its  ruling,  the  error 
would  not  be  healed  unless  the  defendant  was  allowed  reason- 
able time  and  opportunity  to  bring  forward  the  necessary  evi- 
dence. If  the  defendant  in  such  a  case  as  that  supposed  were 
not  allowed  fair  opportunity  and  reasonable  time  to  prepare  for 
a  defense,  the  error  in  the  last  ruling  would  be  more  injurious 
and  the  injustice  more  flagrant  than  in  the  first  instance,  inas- 
much as  such  a  course  would  deprive  him  of  his  exceptions  to 
the  original  ruling  and  yield  him  no  substantial  benefit.1  But, 
it  may  be  well  enough  to  say,  if  the  defendant  in  such  a  case  as 
that  supposed  desires  to  save  the  question  he  should  make  the 
proper  request  for  time,  and  reserve  an  exception  ;  foiling  in 
this  the  doctrine  of  waiver  will  preclude  him  from  successfully 
urging  the  point  on  appeal.  If  the  ultimate  decision  clearly 
shows  that  a  full  and  fair  opportunity  was  given  a  party  to 
avail  himself  of  his  rights  under  the  law,  or  if  all  such  rights 
were  secured  to  him,  errors  in  ruling  on  the  pleadings  are  cured.2 
This  is  clearly  so,  for,  if  the  ultimate  decision  is  right  although 
the  wrong  mode  has  been  pursued,  all  intervening  errors  are 
cured.  No  party  can  be  prejudiced  where  the  final  decision 
awards  him  what  the  law  secures  him.3  It  is  probably  true  that 
there  are  other  reasons  supporting  this  conclusion  than  that  as- 
signed, but  this  does  not,  of  course,  impeach  the  validity  of  the 
conclusion.4 

1  Pettygrovet'.  Rothschild,  2  Wash.  6,     reached    by  wrong    mode."     Clark    v. 
25  Pac.  Rep.  907.  City  of  Austin,  3S  Minn.  487,  38  N.  W. 

2  Bitzer  v.   Wagar,  83  Mich.  223,  47     Rep.  615. 

N.  W.  Rep.  2IO.     See,  generally,  Elli-  ''The      line     between    the    subjects, 

son  v.  Rerick,    125  Ind.  396,  25   N.  E.  "waiver,"  and  "curing  error,"  is  often 

Rep.  454;   Payne  v.   Hardest y  (Ky.),  14  very  indistinct  and  shadowy.  In  general 

S.  W.  Rep.  348;  Roy  f.  Union,  etc.,  Co.  the  term  "w  aiver"  refers  to  the  act  of  the 

(  Wyo.),  26  Pac.  Rep.  996.  party. while  the  term,"curingerror,"usu- 

:i  Ante,  §  590.     "  The  ultimate  ruling  ally  refers  to  the  conduct  of  the  court, 

is     decisive."     §    590,     "Right     result  but  the  general  principle  governing  cases 


CURING  ERROR.  655 

§  698.  Curing  error  in  the  Admission  of  Evidence  by  supplement- 
ing it  by  Evidence  making  it  Competent — The  general  rule  is  that 
there  is  no  available  error  in  admitting  incompetent  testimony 
if  evidence  is  subsequently  given  which  makes  it  competent. 
This  is  true  for  two  reasons  ;  one  is,  that  the  order  of  introduc- 
ing evidence  is  a  matter  largely  in  the  discretion  of  the  trial 
court,  and  another  is,  that  where  the  ultimate  result  is  right, 
although  reached  by  a  wrong  mode,  intervening  errors  are  dis- 
regarded. If  the  evidence  subsequently  introduced  makes  the 
other  evidence  competent  the  objections  become  unavailing.1 

§  699.  Proving  the  same  facts  by  Competent  Testimony  sometimes 
obviates  the  error  in  admitting  Incompetent  Evidence — It  is  held 
that  if  facts  are  allowed  to  be  proved  by  incompetent  testimony 
the  error  is  cured  if  the  same  facts  are  subsequently  proved  by 
competent  testimony.2  The  decided  cases  may  possibly  require 
the  conclusion  that  the  statement  in  the  preceding  sentence  ex- 
presses the  general  rule,  but  even  if  the  rule  can  be  justly  said 
to  be  general,  it  must  also  be  said  that  it  is  much  narrower  than 
most  general  rules  and  its  operation  is  interrupted  by  very  many 
exceptions.  We  are,  indeed,  strongly  impressed  with  the  be- 
where  an  opportunity  is  offered  a  party  *  Morris  v.  Wells,  54  Hun.  634,  7  N. 
Df  which  he  fails  to  avail  himself  is  com-  Y.  Supp.  61;  Brown  v.  Klock,  52 
mon  to  both.  This  is  evident  from  the  Hun.  613,  5  N.  Y.  Supp.  245;  Mac- 
discussions  found  in  many  judicial  opin-  Kay  v.  Riley  (111.),  26  N.  E.  Rep.  525; 
ions.  Newton  t>.  Newton,  46  Minn.  33,  Patten  v.  Belo,  79  Texas,  41;  New 
4S  N.  W.  Rep.  450;  Suarez  v.  Manhat-  York,  etc.,  Co.  v.  Gallagher,  79  Texas, 
tan  Ry.  Co.,  60  Hun.  5S4, 15  N.Y.  Supp.  685,  15  S.  E.  Rep.  694;  Shaw  v.  Bryan. 
222;  Wynn  v.  Central,  etc.,  Co.,  14  N.  39  Mo.  App.  523;  Blake  v.  Broughton, 
Y.  Supp.  172;  Wing  v.  De  La  Rionda,  107  N.  C.  220,  12  S.  E.  Rep.  127;  At- 
125  N.  Y.  67S,  25  N.  E.  Rep.  1064;  kinson  v.  Olesener,  57  Hun.  592,  10  N. 
Washington  v.  Louisville,  etc.,  Co.,  34  Y.  Supp.  S22;  Jacksonville,  etc.,  Co.  v. 
111.  App.  65S,  S.  C.  26  N.  E.  Rep.  653;  Peninsular,  etc.,  Co.  (Fla.),  9  So.  Rep. 
Morrison  v.  Hedenberg  (111.),  27  N.  E.  661;  Olson  v.  Solverson,  71  Wis.  663,  38 
Rep.  460.  N.  \V.  Rep.  329;   Hooker  v.  Village  of 

1  Black  v.  Camden,  etc.,  Co.,  45  Barb.  Brandon,  75  Wis.  S,  43  N.W.  Rep.  741 ; 
40;  Harrington  7'.  State.  S3  Ala.  9,  3  So.  Addy  v.  Janesville,  70  Wis.  401.  35  N 
Rep.425;  Barklv:'.Copeland,74Cal.  1.  W.  Rep.  931;  Meracle  v.  Down.  64 
S.C.5  Am.  St.  Rep. 413;  Crich  r.Wil-  Wis.  323,  25  N.  W.  ReP.  412;  Cameron 
liamsburgh,  etc.',  Co.,  45  Minn.  441,  4S  v.  White,  74  Wis.  425,  43  N.  W.  Rep. 
N.  W.  Rep.  19S;  Gano  v.  Chicago,  etc.,  155;  Hanf  v.  Northwestern  Association, 
Co.,  66  Wis.  1,  27  N.  W.  Rep.  628.  76  Wis.  450.  45  N.  W.  Rep.  315. 


(356 


ERROR  IN   JUDICIAL   PROCEEDINGS. 


lief  that  the  rule  can  not  be  accurately  said  to  be  a  general  one. 
Tt  may  no  doubt  be  properly  given  effect  where  it  is  clear  that 
the  incompetent  evidence  could  have  done  no  harm,1  but  it  is 
equally  certain  that  there  are  many  cases  where  incompetent 
evidence  of  the  same  facts  as  those  proved  by  other  evidence 
may  exert  a  very  prejudicial  influence,  inasmuch  as  it  is  almost 
certain  to  be  regarded  by  the  jury  as  corroborative,  whereas  it 
ought  not  to  be  considered  for  an)'  purpose.2     We  can  not  resist 

1  Of  the  class  of  cases  referred  to  in  Hagan  tc  be  proven."  In  the  well  con- 
the  text  the  following  may  be  taken  as  sidered  case  of  McAllister  v.  Detroit, 
representatives  or  types:  Bradley  v.  etc.,Co.,85  Mich. 453, 48 N.W.  Rep.612, 
Palen,  7S  Iowa.  126,  42  N.W.  Rep.  623;  613,  it  was  said:  "It  is  true  the  court 
Beard  v.  First  National  Bank, 41  Minn,  directed  the  jury  that  the  only  thing  in 
[53,  43  N.  W.  Rep.  7:  Board  v.  Ham-  the  case  was  the  publication  of  the 
niond,  83  Ind.  4^3;  Cooper  v.  Coates,  matter  so  far  as  it  was  untrue,  and  that 
21  Wall.  105;  Barth  v.  Clise,  12  Wall,  they  should  not  take  into  consideration 
400;  McAlpin  v.  Ziller,  17  Texas,  508;  in  the  matter  of  damages  the  outrages 
Sadler  v.  Sadler,  16  Ark.  628;  Cooper  committed  by  the  Windsor  officers,  and 
v.  Breckenridge,  11  Minn.  341.  that  whether   the   arrest    was    legal  or 

2  In  the  case  of  Anderson  v.  Rome,  justifiable  was  wholly  immaterial  to  the 
etc.,  Co.,  54  N.  Y.  334,  341,  the  court  issue,  and  they  should  not  consider  the 
held  that  proving  the  same  facts  in  a  arrest  at  all,  but  only  the  publication, 
legitimate  mode  did  not  heal  the  error  This  testimony  had  been  given  to  the 
in  suffering  incompetent  testimony  to  jury,  however,  tending  to  create  in  their 
go  to  the  jury,  and  said,  in  the  course  minds  a  feeling  of  indignation  at  such  ill 
of  the  opinion:  "The  reception  of  ille-  usage,  and  the  charge  very  likely  would 
gal  evidence  is  presumptively  injurious  not  remove  it,  and  it  would  remain 
to  the  party  objecting  to  its  admission;  with  them  when  they  retired  to  their 
but  when  the  presumption  is  repelled,  jury  room  to  consider  of  their  verdict, 
and  it  is  clear  beyond  a  rational  doubt,  notwithstanding    the  charge."     People 


that  no  harm  was  done  to  the  party 
objecting,  and  that  the  illegal  evidence 
did  not  and  could  not  affect  the  result, 
the  error  furnishes  no  ground  for  re- 
versal.    People  t\   Gonzales,  35  N.  Y. 


v.  Evans,  72  Mich.,  367,  40  N.  W.  Rep. 
473.  The  subject  received  careful  con- 
sideration in  the  case  of  Meyer  r>.  Lewis, 
43  Mo.  App.  417.  and,  after  a  full  and 
discriminating  review  of  the  authorities, 


49;    Yandevoort  v.  Gould,  36  N.  Y.  639,  it  was  held  that  an  instruction  to  disre- 

644.     Any  illegal  evidence   that  would  gard    incompetent    evidence  was  suffi- 

have  a  tendency  to  excite  the  passions,  cient  as  a  general  rule  to  cure  the  error, 

arouse  the  prejudices,  awaken  the  sym-  but  that  there  are  cases  where  such  an 

pathies  or   warp  the  judgments  of  the  error  is  not  cured  by  an  instruction.    It 

jurors  in  any  degree  could  not  be  con-  was  said:  "We  conclude,  therefore,  that 

sidered    harmless."     It    was   also  said:  the  general  rule  applicable  to  civil  trials 

"  1  am  of  the  opinion  that  the  fact  that  is,  that  incompetent  evidence  admitted 

Sullivan    was    called    and    sworn    as    a  in  the  progress  of  the  trial  may  be  with- 

witness  does   not   cure   the  error  com-  drawn  by  the  party  offering  it,  or  sjxick- 

mitted   in   allowing   his   declaration  to  en  out  on  his  motion,  or  withdrawn  by 


CURING   ERROR 


Go  7 


the  conclusion  that  some  of  the  courts  have  given  the  doctrine 
a  much  wider  scope  than  principle  warrants.  In  many  instances 
it  is  scant  comfort  to  a  party  to  be  turned  away  with  the  answer 
that  it  is  true  that  the  incompetent  evidence  ought  not  to  have 
been  admitted,  but  as  the  same  facts  were  proved  by  competent 
evidence  the  error  was  healed. 


§  700.  Withdrawal  of  Incompetent  Evidence— The  general  rule 
asserted  by  many  courts  is  that  an  error  in  suffering  incompe- 
tent evidence  to  go  to  the  jury  over  objection  may  be  cured  by 
an  effective  withdrawal  of  the  incompetent  evidence.1  The 
rule  is  one,  as  it  seems  to  us,  to  be  applied  with  scrupulous 
care.  The  rule  as  it  is  sometimes  applied  works  injustice. 
The  mere  withdrawal  of  evidence  does  not  always  efface 
or  remove  the  effect  it  has  produced.  The  impression  pro- 
duced bv  evidence  once  heard  is  not  easily  eradicated.  The 
removal  of  an  impression  from  the  minds  of  men  is  not  very 


an  instruction  admonishing  the  jury  to 
disregard  it  so  as  to  cure  the  error  of 
admitting  it.  But  we  are  equally  of 
opinion  that  many  cases  may  arise 
where  it  will  be  apparent  to  a  review- 
ing court,  from  the  nature  of  the  evi- 
dence in  the  case  as  preserved  by  the 
bill  of  exceptions  and  from  the  verdict 
rendered  bv  the  jury,  that  the  error  of 
admitting  it  was  probably  not  cured  by 
the  withdrawing  of  it.  or  by  the  striking 
of  it  out.  whether  by  the  party  offering 
it  or  by  the  judge  directing  the  jury  to 
disregard  it."  This  doctrine  is  sustained 
by  other  cases.  French  v.  Detroit  Free 
Press  Co.  (Mich.),  4S  N.  W.  Rep.  615; 
Furst  v.  Second  Avenue  Ry.  Co.,  72  N. 
Y.542;  Erbin  v.  Lorillard,  19N.Y.299, 
302;  Warrall  v. Parmelee,  1  Comst.519; 
Griggs  V.  Smith,  13  N.  Y.  Supp.  273; 
Nichols  v.  White,  85  N.  Y.  531,  536; 
Pringle  V.  Leverieh,  97  N.  Y.  1S1,  1S6; 
Waring  v.  U.  S.  Tel.  Co..  4  Daly.  233; 
Foote  v.  Beeclnr.  7S  N.  Y.  155;  Baird 
v.  Gillett,  47  N.  Y.  186;  Railroad  Co. 
o.Winslow,  66  111.  219;   Lycoming,  etc., 

42 


Co.  v.  Rubin,  79  111.  402;  Howe,  etc., 
Co.  v.  Rosine,  87  111.  105;  State  :•. 
Thomas,  99  Mo.  235;  State  v.  Daubert, 
42  Mo.  242;  Cobb  v.  Griffith,  12  Mo. 
App.  130;  Stephens  v.  Railroad,  96  Mo. 
207. 

1  Wright  v.  Gillespie,  43  Mo.  App. 
244;  Ilillistad  v.  Hostetter,  46  Minn.. 
393,  49  X.  W.  Rep.  192;  State  v.  Cum- 
mins, 76  Iowa,  133,  40  X.  W.  Rep.  124; 
Woods  v.  Hamilton,  39  Kan.  69, 17  Pac. 
Rep.  335;  Indianapolis,  etc., Co.  v.  Bush, 
101  Ind.  5S2;  Providence,  etc.,  Co.  v. 
Martin.  32  Md.310;  Boone  v.  Purnell.  2S 
Md.607;  Dillingham  v.  Russell,  73  Tex. 
47,  S. C.3  Law.  Rep.  Anno. 634;  Decker 
V.  Bryant,  7  Barb.  182,  1S9;  Clinton  v. 
Rowland,  24  Barb.  634;  Boyd  v.  State, 
17  Ga.  194;  Davenport  v.  Harris,  27 
Ga.68;  Gray  v.  Gray,  3  Litt.  (Kv.)  465; 
Durant  v.  Lexington,  etc.,  Co.,  97  Mo. 
62,  10  S.  W.Rep.4S4;  State  V.  Collins, 
93  X.  C.  564;  McAllister  v.  McAllister, 
12  Ired.  1S4;  State  V.  May.  4  Dew  32S; 
State  v.  Gay.  94  X.  C.  841. 


658  ERROR   IX  JUDICIAL   PROCEEDINGS. 

unlike  the  removal  of  writing  from  paper  or  parchment ;  des- 
pite earnest  efforts  to  remove  it  traces  are  likely  to  remain. 
Whether  the  withdrawal  of  the  incompetent  evidence  does  or 
does  not  cure  the  error  must  depend  in  a  great  measure  upon 
the  character  and  influence  of  the  evidence.  There  may  be 
cases  where  the  character  of  the  evidence  is  such  that  a  mere 
withdrawal  without  specific  instructions  or  directions  is  sufficient 
to  heal  the  error,  but  in  many  cases  the  withdrawal  should  be 
accompanied  by  clear  and  explicit  instructions  to  disregard  the 
evidence,  entirely  and  absolutely.  A  party  who  duly  and  sea- 
sonably requests  it  is,  as  we  believe,  entitled  to  have  the  jury 
specifically  instructed  to  disregard  the  incompetent  evidence, 
and  a  refusal  to  so  instruct  would  be  error  although  there  may 
be  a  formal  withdrawal  of  the  evidence.1  We  have  indicated  in 
a  former  paragraph  our  opinion  that  there  may  be  cases  where 
the  evidence  is  so  influential  that  its  mischievous  effect  can  not 
be  overcome  by  proving  the  same  facts  by  legitimate  evidence, 
and  wherever  this  clearly  and  fully  appears  the  verdict  ought 
not  to  stand. 

§701.  Instructions  to  disregard  Incompetent  Evidence — An  in- 
struction to  disregard  evidence  will,  as  a  general  rule,  cure  the 
error    committed    by    the    court    in    admitting  it.2     The   party 

1  In  the  case  of  Roonev  v.  Milwaukee,  tion  of  the  court  to  the  jury  not  to  con- 
etc,  Co.,  65  Wis.  397,  399,  it  was  said:  sider  it.  Pennsylvania  Co.  v.  Roy,  102 
"This  court  has  frequently  decided  it  U.  S.  451.  In  the  case  at  bar  the  court 
would  notreverse  a  judgment  because  ir-  was  silent  as  to  the  effect  which  should 
relevant  testimony  was  admitted  on  the  be  given  the  testimony  '  but  such  silence 
trial  when  it  was  apparent  that  such  was  by  no  means  equivalent  to  a  posi- 
improper  evidence  had  no  influence  tive  direction  to  disregard  it.'  Castle- 
upon  the  jury.  Fowler  v.  Farmers,  man  v.  Griffin,  13  Wis.  535,  539." 
etc.,  Co.,  21  Wis.  77;  Noonan  v.  Ilsley,  2  State  v.  James  (So.  Car.),  12  S.  E. 
22  Wis.  27,  39;  Hazelton  v. Union  Bank,  Rep. 657;  Pireaux  v.  Simon,  79  Wis.  392, 
32  Wis.  34.  But  where  there  is  reason  4S  N.W.  Rep.  674;  Wishmiert;.  Behym- 
to  suppose  that  the  rigbts  of  a  party  er,  30  Ind.  102;  Zehner  v.  Kepler,  16 
were  prejudiced  by  the  admission  of  the  Ind.  290;  Gebhart  v.  Burkett,  57  Ind. 
improper  testimony,  tli.'  judgmentwill  378;  Moore  v.  Shields,  121  Ind.  267; 
be  reversed  on  that  ground.  State  Bank  Cadman  v.  Markle,  76  Mich.  448;  Dil- 
v.  Dutton,  11  Wis.  371;  Remington  v.  lingham  v.  Russell,  73  Tex.  47;  Evans- 
Bailey,  13  Wis.  332.  It  has  been  held  ville,  etc..  Co.  v.  Montgomery,  85  Ind. 
that  the  error  of  admitting  such  testi-  494;  Law  K  r  r  .  NKPheeters,  73  Ind.  577; 
mony  was  cured  by  a  subsequent  direc-  Blizzard  v.  Applegate,  77  Ind.  516,  527; 


CURING   ERROR. 


659 


against  whom  such  evidence  is  admitted  has  a  right  to  ask  that 
the  instructions  shall  be  clear  and  explicit.1  If  a  party  desires 
an  express  and  explicit  direction  to  disregard  evidence,  he 
should  appropriately  and  seasonably  request  the  proper  direc- 
tion or  instruction,  for  if  there  is  a  withdrawal  and  no  proper 
request,  the  acquiesence  of  the  party  will,  as  a  rule,  be  held  to 
waive  more  specific  instructions  or  directions.2 

§  702.   Exceptional   Cases— We    fully  recognize   the   doctrine 
that  the  presumption  is  that  jurymen  obey  the  instructions  of 


Blake  v.  Broughton,  107  N.  C.  220,  12 
S.  E.  Rep.  127;  Mitts  v.  McMorran,  85 
M  Kb.  94,  4S  N.  W.  Rep.  288;  Alabama, 
etc.,  Co.  v.  Frazier  (Ala.),  9  So.  Rep. 
303;  Taylor  v.  Wootan,  1  Ind.  App. 
iSS,  192,  27  N.  E.  Rep.  502;  Blaisdell  v. 
Scally,  S4  Mich.  149,  47  N.  W.  Rep. 
1585.  In  the  case  of  Pennsylvania 
Co.  v.  Roy,  102  U.  S.  451,  the  court 
said,  in  answer  to  the  argument  of 
counsel:  "To  this  position  we  can  not 
assent,  although  we  are  referred  to  some 
adjudged  cases  which  seem  to  announce 
the  broad  proposition  that  an  error  in 
the  admission  of  evidence  can  not  be 
afterwards  corrected  by  instructions  to 
the  jury,  so  as  to  cancel  the  exception 
taken  to  its  admission.  But  such  a 
rule  would  be  exceedingly  inconvenient 
in  practice,  and  would  often  seriously 
obstruct  the  course  of  business  in  the 
courts.  It  can  not  be  sustained  upon 
principle,  or  by  sound  reason,  and  is 
against  the  great  weight  of  author- 
ity. The  charge  from  the  court  that 
the  jury  should  not  consider  the  evi- 
dence which  had  been  improperly  ad- 
mitted was  equivalent  to  striking  it  out 
of  the  case.  The  exception  to  its  ad- 
mission fell  when  the  error  was  subse- 
quently corrected  by  instructions  too 
clear  and  positive  to  be  misunderstood 
by  the  jury.  The  presumption  should 
not  be  indulged  that  the  jury  were  too 
ignorant  to    comprehend,  or  were  too 


unmindful  of  their  duty  to  respect,  in- 
structions as  to  matters  peculiarly  with- 
in the  province  of  the  court  to  deter- 
mine. It  should  rather  be,  so  far  as 
this  court  is  concerned,  that  the  jury 
were  influenced  in  their  verdict  only  by 
legal  evidence.  Any  other  rule  would 
make  it  necessary  in  every  trial,  where 
an  error  in  the  admission  of  proof  is 
committed,  of  which  error  the  court  be- 
comes aware  before  the  final  submission 
of  the  case  to  the  jury,  to  suspend  the 
trial,  discharge  the  jury  and  commence 
anew.  A  rule  of  practice  leading  to 
such  results  can  not  meet  with  ap- 
proval." 

1  Glenn  v.  Glore,  42  Ind.  60;  Bradley 
v.  Cramer,  66  Wis.  297,  2S  N.  W.  Rep. 
372;  Rooney  v .  Milwaukee,  etc.,  Co.,  65 
Wis.  397;  People  v.  Wallace,  89  Cal. 
t  58,  26  Pac.  Rep.  650. 

2  It  was  said  by  the  court  in  Moore 
v.  Shields,  121  Ind.  267,  271,  that :  "It 
is  quite  true  that  the  instruction,  so  far 
as  the  evidence  admitted  was  con- 
cerned, was  not  as  direct  as  it  might 
have  been,  but  the  court  undertook  to 
correct  the  error  by  an  instruction.  As 
no  more  explicit  instruction  was  asked 
on  the  appellant's  behalf,  it  must  have 
been  deemed  satisfactory  at  the  time. 
Having  neglected  to  ask  that  the  jury 
be  more  explicitly  instructed  then,  it 
is  too  late  to  complain  now  for  the  first 
time.    Gebhart  v.  Burkett,  57  Ind.  37S." 


660  ERROR   IN  JUDICIAL  PROCEEDINGS. 

the  court,  and  we  quite  as  fully  recognize  the  general  rule  that 
incompetent  evidence  may  be  so  effectively  withdrawn  by  in- 
structions as  to  heal  the  error  committed  in  admitting  it.  But 
while  fully  recognizing  the  validity  and  soundness  of  these 
general  rules  we,  nevertheless,  believe  that  exceptions  exist. 
The  rules  are  general,  not  universal.  Extreme  cases  may  arise 
which  must  be  regarded  as  exceptions  or  else  injustice  be  done. 
It  does  not  follow  that  because  exceptions  exist  a  rule  is  not 
general.  Considerations  of  consistency  and  expediency  are 
influential,  but  where  substantive  rights  are  involved,  such  con- 
siderations must  yield.  If,  therefore,  the  case  is  one  in  which 
it  clearly  appears  that  an  instruction  did  not  remove  the  effect 
of  powerful  evidence,  the  case  must,  as  we  believe,  be  regarded 
as  an  exception  to  the  general  rule.1  It  is  no  doubt  incumbent 
upon  a  party  in  a  case  where  the  proper  instruction  to  disregard 
illegal  evidence  has  been  given  to  make  it  clearly  and  strongly 
appear  that  his  case  constitutes  an  exception  to  the  general 
rule,  and  this  he  can  not  do  without  making  it  manifest  that  the 
jury  did  not  yield  to  the  instructions  of  the  court. 

§  703.   Effect  of  Sustaining  a  Motion  to  strike  out  Incompetent 

Testimony — It  is  obvious  that  where  a  party  moves  to  strike  out 
incompetent  testimony  given  against  him  and  the  court  sustains 
his  motion,  the  error  in  admitting  the  evidence  is  cured  and  the 
objections  taken  to  its  admission  waived.  Such  a  case  is  quite 
different  from  one  in  which  the  court  of  its  own  motion,  or  upon 
the  motion  of  the  adverse  party  withdraws  the  evidence  or  in- 
structs the  jury  to  disregard  it,  for  in  the  former  case  the  party 
elects  to  have  the  evidence  struck  out,  and,  by  his  election,  vol- 
untarily abandons  positions  previously  taken.2     In  the  one  case 

'  The  authorities  elsewhere  cited  sup-  firmed  that  they  are  broken  byexcept- 

port    our    conclusion.      A  fife,    §    698.  ions. 

There  is  no  conflict  between  our  con-  2  This  doctrine  is  well   illustrated  by 

elusion  and  the  cases  cited  in  the  note  to  the  case  of  Vannoy  v.  Klein,  ijj  Ind. 

the  preceding  paragraph,  for  they  as-  416.     In  that  case  the  party   requested 

sert  what  is  conceded  to  be  the  general  the  court  to  instruct  the  jury  as  to  the 

rule,  while  we  here  assert  nothing  more  effect  of  the  evidence,  and  his  instruc- 

than  that  there  may  be  particular  cases  tion    was  given.     It    was   held  that   by 

with  such  well  defined  and  marked  pe-  asking  the  instruction  he  waived  objec- 

culiarities  as  to  constitute   exceptions,  tions    interposed   to    the  admission    as 

There   are   very    few  general    rules,   in-  well  as  his  motion  to  strike  out. 
deed,  of  which  it  may  not  be  truly  af- 


CURING   ERROR.  QQ\ 

the  party  by  his  own  voluntary  act  waives  all  former  objections 
and  secures  what  he  elects  to  consider  adequate  relief,  while  in 
the  other  he  does  not  abandon  objections  previously  made.1 

§  704.  When  a  Party  can  not  withdraw  Evidence  over  the  Objec- 
tion of  his  Adversary — Where  an  objection  is  interposed  to  evi- 
dence the  party  by  whom  it  was  introduced  is,  as  a  general 
rule,  at  liberty  to  withdraw  it,  and  error  can  not  be  successfully 
alleged  on  the  ruling  permitting  it  to  be  withdrawn,2  although, 
as  we  have  elsewhere  said,  the  withdrawal  does  not  invariably 
cure  the  error  committed  in  suffering  it  to  go  to  the  jury.  In 
such  cases,  the  error,  if  there  is  error,  grows  out  of  the  harm 
done  in  allowing  the  jury  to  hear  the  evidence,  not  in  permitting 
it  to  be  withdrawn.  Where  the  evidence  is  favorable  to  the 
opposite  party  and  is  not  utterly  incompetent,  the  general  rule 
is  that  the  party  introducing  it  can  not  at  his  pleasure  withdraw 
it  from  the  jury.3 

§  705.  Curing  Errors  in  Instructions — The  general  rule  is  that 
the  court  may  cure  errors  in  its  instructions  by  withdrawing, 
explaining  or  correcting  them.  Where  a  material  instruction 
is  given  that  is  erroneous  it  should  be  effectively  withdrawn.4 

1  Price  v.  Brown,  98  N.  Y.  38S.  i  Kirland  v.  State,  43  Ind.  146,  S.  C. 

2  Boyd  v.  State,  17  Ga.  194;  Daven-  13  Am.  Rep.  3S6;  McCole  v.  Loehr,  79 
port  v.  Harris,  27  Ga.  6S;  Providence,  Ind.  430;  Bradley  v.  State,  31  Ind.  492, 
etc.,  Co.  v.  Martin,  32  Md.  310,  316;  503;  Clem  v.  State,  31  Ind.  4S0;  Uhl  v. 
Boone  v.  Purnell,  28  Md.  607,  630.  Bingaman,  78  Ind.  365;  Kingen  v.  State, 

3  Decker  v.  Bryant,  7  Barb.  1S2,  189;  45  Ind  51S;  Toledo,  etc.,  Co.  v.  Shuck- 
Clinton  v.  Rowland,  24  Barb.  634.  man,  50  Ind.  42;  Binns  v.  State,  66  Ind. 
The  reason  for  this  rule  is  obvious.  428;  Lower  v.  Franks,  115  Ind.  334, 340; 
The  party  who  brings  out  the  evidence  Goodsell  v.  Taylor,  41  Minn.  207.  42  \. 
can  not  retain  what  favors  him  and  re-  W.  Rep.S73;  People  v.  Terrell,  5S  I  Inn. 
ject  that  which  benefits  his  adversary.  602;  Baker  v.  Ashe  (Texas),  16  S.  W. 
Nor  can  a  party  be  allowed  to  take  the  Rep.  36;  People  v.  Chew  Sing  Wing,  88 
chance  of  eliciting  evidence  and  if  it  Ca'.  26S,  25  Pac.  Rep.  1099;  Jones  v.  Tal- 
benefits  him  keep  it  before  the  jury,  bot,  4  Mo.  279,  285;  Bank  of  the  Me- 
but  if  it  harms  him  take  it  from  them,  tropolis  V.  New  England  Bank,  6  How. 
When  evidence  is  introduced  it  is.  as  a  (U.  S.).  212;  Chicago,  etc.,  Co.  v.  Wil- 
general  rule,  available  to  the  party  ben-  cox  (111.),  24  N.  E.  Rep.  419,  S.  C.  S 
efited  whether  it  be  the  one  who  intro-  Law.  Rep.  Anno.  494;  Billups  t'.D 
duced  it  or  the  adverse  party.  Some  3S  Mo.  App.  367;  Fink  v.  Algermissen, 
of  the  courts  say:  "  Evidence,  when  in,  25  Mo.  App.  186;  Arcia  v.  State,  28  Tex. 
is  common  property."  App.   [98,  12   S.   W.  Rep.  599.     It  was 


ERROR   IX    fUDICIAL  PROCEEDINGS. 


An  error  in  giving  an  erroneous  instruction  is  not  cured  by 
merely  giving  another  contradicting  it.  The  court  can  not 
without  fatal  error  give  contradictory  instructions  to  the  jury, 
since  that  would  impose  upon  the  jury  the  duty  of  determining 
the  law  as  well  as  the  facts.  The  court  may  refuse  to  give  an 
instruction,  although  it  has  indicated  to  the  parties  that  it  would 
he  given.1 

§  706.  Refusal  of  Instructions— Where  a  party  appropriately 
asks  a  special  instruction  an  error  in  refusing  it  is  not  always 
cured  by  giving  a  general  charge  upon  the  subject.  A  party 
has  a  right  to  have  a  specific  instruction  applying  the  law  to 
the  facts  of  the  particular  case  as  developed  by  the  evidence.2 
It  is  the  object  of  a  charge  to  the  jury  to  present  the  law  of  the 
particular  case,  not  to  inform  the  jury  upon  mere  abstract  gen- 
eral rules  of  law.  It  is  obvious  that  the  general  statement  of 
an  abstract  legal  rule  in  many  cases  can  be  of  no  substantial 
benefit  to  a  party,  and  yet  a  well  drawn  instruction  appropriately 
directing  the  jury  as  to  the  law  of  the  case  before  them  might 
secure  him  the  verdict.  It  is,  however,  not  error  to  state  cor- 
rectly abstract  propositions  of  law  ;  the  error  is  in  refusing  a 
proper  and  seasonable  request  to  give  a  special  instruction  ap- 
plicable to  the  facts  of  the  particular  case.3 


held  in  the  case  of  McCrory  v.  Ander- 
son, 103  Ind.  12,  that  where  the  court 
gives  one  series  of  instructions  and  sub- 
sequently gives  another  and  different 
series,  the  errors  in  the  first  series  are 
cured.  It  may  well  be  doubted  whether 
tin-  doctrine  of  this  case  can  be  sus- 
tained. It  is  clear,  at  all  events,  that 
the  error  in  such  a  case  can  not  be  cured 
by  giving  a  second  series  of  instruc- 
tions, unless  that  series  is  so  full  and 
explicit  as  to  effectually  impress  the 
minds  of  the  jurors  that  the  law  as  de- 
clared in  the  last  series  is  that  by  which 
they  must  be  governed.  Improper  re- 
ks  made  in  ruling  upon  the  admis- 
sion of  evidence  ma}  he  withdrawn  by 
a  strong  ami  unequivocal  instruction- 
Reinhold  v.  State.  30  N.  E.  Rep. . 


1  City  of  Logansport  V.  Dykeman, 
116  Ind.  15;  Louisville,  etc.,  Co.  v.  Hub- 
bard, 116  Ind.  193.  The  withdrawal  of 
an  instruction  by  the  party  by  whom  it 
was  asked  disposes  of  the  exceptions  of 
the  adverse  party.  Haines  v.  Mc- 
Laughlin. 135  U.  S.  584. 

8  Hipes  v.  State,  73  Ind.  39,  41;  Car- 
penter v .  State,  43  Ind.  371,  373;  Win- 
chester v.  King,  46  Mich.  102;  Mc- 
Cormick  v.  Smith,  127  Ind.  230.  26  N. 
E.  Rep.  825;  Morris  :•.  Piatt,  32  Conn. 
75;  Little  Miami, etc.,  Co.  ".  Wetmore, 
19  Ohio  St.  no;  Thompson  v.  Shan- 
non, 9  Texas,  536. 

3  Ante,  §  647.  "Incomplete  instruc- 
tions." Mutual  Life  Insurance  Co.  V. 
Snyder,  93  U.  S.  393;  Hall  v.  Weare, 
92  U.  S.  72S;  Tomlinson  v.  Wallace.  16 


CURING   KRROR.  603 

§  707.   Subsequently  Admitting   Evidence  once  Excluded— It  is 

barely  necessary  to  say  that  if  evidence  is  wrongfully  excluded 
the  error  is  completely  cured  by  subsequently  admitting  the 
same  evidence.  The  cases  affirming  this  doctrine  are  very 
numerous.  We  cite  some  of  them  for  the  purpose  of  showing 
the  application  of  the  rule  to  particular  instances,  and  not  for 
the  purpose  of  supporting  the  self-evident  conclusion  stated.1 
But  where  evidence  of  a  high  degree  of  probative  force  is  er- 
roneously excluded,  the  error  is  not  cured  by  admitting  evi- 
dence of  the  same  facts  by  evidence  of  less  force.  Thus,  if 
record  evidence  of  a  conclusive  character  is  erroneously  ex- 
cluded, the  admission  of  oral  testimony  will  not  cure  the  error. 
So,  it  has  been  held,  the  error  in  excluding  the  testimony  of  a 
disinterested  witness  is  not  cured  by  subsequently  admitting  the 
testimony  of  an  interested  witness.2 

§  708.  Miscellaneous  Instances — If  the  court  by  a  subsequent 
ruling  grants  relief  previously  denied,  the  general  rule  is  that 
the  error  in  the  original  decision  or  ruling  is  cured.  Thus,  if 
a  continuance  is  erroneously  refused,  the  error  is  cured  if  a 
continuance  is  subsequently  granted.3  So,  if  the  court  wrong- 
fully refuses  to  direct  a  change  of  venue,  but  subsequently 
grants  it,  the  error  in  the  first  ruling  is  healed.  Again,  if  a 
court  refuses  to  order  the  examination  of  a  party,  but  after- 
wards orders  the  examination,  the  second  order  cures  the  er- 
ror in  the  first.  As  another  illustration  we  may  take  a  case 
where  the  court  erroneously  directs  a  general  and  special  ver- 
dict where  only  a  special  verdict  ought  to  have  been  directed, 
the  error  in  the  direction  is  healed  if  the  general  verdict  is 
disregarded  and  the  judgment  placed  entirely  on  the  special 
verdict.4 

Wis.  224;   State  v.  Straw,  33  Me.  554;  etc..   Co.   (Iowa),   47   N.  W.  Rep.  986; 

Chamberlain  v.  Porter,  9    Minn.    260;  Palmer  v.  Conant,  5S  Hun.  333;   Hope 

Davis   v.  Elliott,  15  Gray,  90;  Bain  v.  v.  Blair,  105  Mo.  85,  16  S.  W.  Rep.  595. 

Doran,  54  Pa.  St.  124;  Moore  v.  Ross,  2  Packard  v.  Backus,  7S  Wis.  tS 

11  N.  H.  547;  Barrett  v.  Delano  (Me.),  N.  W.  Rep.  1S3. 

14  Atl.  Rep.  288.  'Tillinghast   v.  Nourse,  14  Ga.  641; 

1  Pennsylvania    Co.  v.    Marion.    123  People  v.  Sackett,  14  Mich.  320;  Mairs 

Ind.  415;    Real  Del    Monte,  etc..  Co.   V.  V.  Gallahue,  9  Gratt.  94. 

Thompson.  22  Cal.  542.    Ahell  v.  Cross,  *  Toler  v.  Keiher.  Si  Ind.  383;  Louis- 

17  Iowa,  171;    Walker  v.  State.  91   Ala.  ville,  etc.,  Co.  V.  Balch,  105  Ind.  03. 
76,  9   So.    Rep.  S7;    Kelly    v.   Norwich, 


CHAPTER  VIII. 

PRESUMPTIONS 


$  709. 
710. 

711. 
712. 


713- 

7«4- 

7*5- 

716. 
717. 


Resort  to  presumptions — What 
presumption  will  be  preferred. 

Presumption  in  favor  of  the  pro- 
ceedings of  the  trial  court. 

Nature  of  the  presumption. 

Record  susceptible  of  two  con- 
structions— That  which  sus- 
tains the  judgment  will  be 
preferred. 

Presumptions  will  not  prevail 
against  the  record. 

Court  and  judge. 

Jurisdiction  of  subject  —  Pre- 
sumption of. 

Exception  to  the  general  rule — 
Judgment  by  default. 

Presumption  of  jurisdiction  is 
not  rebutted  by  the  silence  or 
incompleteness  of  the  record. 


§  71S.  Judgment  of  trial  court  is  pre- 
sumed to  be  properly  sup- 
ported. 

Pleadings  —  Presumption  that 
judgment  is  within  and 
founded  on. 

Presumption  that  rulings  on 
pleadings  were  correct. 

Rulings  on  the  evidence — Pre- 
sumptions respecting. 

Instructions —  Presumptions 
concerning. 

Juries  and  jurors  —  Presump- 
tions concerning. 

Verdicts — Presumptions  in  aid 
of. 

Miscellaneous  instances. 


719. 

720. 

721. 

722. 

723- 
724. 

725- 


§  709.  Resort  to  Presumptions— What  Presumption  will  be  Pre- 
ferred— If  the  appellate  tribunal  is  compelled  to  resort  to  pre- 
sumptions it  will  choose  that  which  sustains  the  proceedings  of 
the  trial  court  and  reject  that  which  would  overthrow  them.1 
If  the  condition  of  the  record  is  such  as  to  require  the  higher 
court  to  act  upon  a  presumption  it  will,  without  hesitation, 
adopt  the  presumption  that  upholds  the  judgment  from  which 
the  appeal  is  prosecuted.  It  has  been  held,  upon  this  general 
principle,  that  it  is  not  enough  to  show  that  "  error  may  have 
been  committed,"  but  it  must  be  shown  that  error  was  actually 
committed.2     It  is  possible  that  the  statement  of  the  rule  in  the 

•Carman    v.    Pultz,    21    N.  Y.    547;  604.     In  the  case  cited  it  was  said:  "It 

Smith    v.  Newland,   9  Hun.  553,  554;  is  incumbent  upon  a  party  seeking  the 

Phillip  v.  Gallant,  62   N.  Y.  256,  265.  reversal  of  a  judgment  or  order  to  show 

s  Tracev  v.   Altmyer,  46  N.  Y.   59S,  that   an    error   was    committed    to    his 

(664) 


PRESUMPTIONS.  665 

case  referred  to  may  be  somewhat  stronger  than  authority  war- 
rants, but  it  is,  at  all  events,  not  far  out  of  the  true  line,  and 
serves  to  show  the  strength  of  the  presumption  that  judicial  tri- 
bunals commit  no  errors. 

§  710.  Presumption  in  favor  of  the  Proceedings  of  the  Trial  Court— 
The  rule  that  all  reasonable  presumptions  and  intendments  will 
be  made  in  favor  of  the  rulings  of  the  trial  court  is  one  of  the 
best  settled  and  most  frequently  applied  rules  in  appellate  pro- 
cedure.1 The  rule  rests  on  a  firm  foundation.  It  is  supported 
by  the  elementary  principle  that  official  acts  are  presumed  to 
be  rightfully  performed.  But  when  it  is  brought  to  mind  that 
a  court  acts  impartially,  upon  full  information  and  with  calm 
deliberation,  the  foundation  of  the  rule  stated  will  at  once  be 
perceived  to  be  broader  and  stronger  than  that  which  under- 
lies the  rule  supporting  the  acts  of  ministerial  or  executive  of- 
ficers. 

§  711.  Nature  of  the  Presumption— The  presumption  while  a 
strong  one  is  not  one  of  a  conclusive  character.  It  will  give 
way  to  a  clear  exhibition  of  countervailing  matters  and  may 
always  be  rebutted.  The  presumption  which  the  law  creates 
in  favor  of  the  rulings  of  a  trial  court  belongs  to  the  class  gen- 
erally denominated  "disputable"  or  "rebuttable"  presump- 
tions, but  is  one  among  the  strongest  of  its  class.     Strong  as  it 

prejudice.     It  is  not  sufficient  to  show  Daggy,  13  Ind.  383;    Koile  v.  Elli-.    16 

that  it  may  have  been  committed.    The  Ind.  301;   State  v.  Smock,  20  Ind    1S4; 

latter  will  not  overcome  the  presump-  Estep  v.  Larsh,  21   Ind.  1S3;  Round  v. 

tion  that  all  things  have  been  transacted  State.  14   Ind.  493;  Beeler  v.  Hantsch, 

correctly,  until  the  contrary  appears."  5  Blackf.  594;   Reddington  v.  Hamilton, 

1  Cases   almost   past  numbering  de-  8  Blackf.  62;   Maxam  v.  Wood,  4  Blackf. 

clare  and  enforce  the  general  rule.     Of  297;   Bishop  v.  Village  of  Goshen.   120 

the  vast  number  of  cases  upon  the  gen-  N.  Y.  337,  24  N.  E.  Rep.  720;    Walters 

eral    subject  we  cite   here   a  very   small  w.Tefft,  57  Mich.  390,  24N.W.Rep.  117; 

number.     Prilliman  v.  Mendenhall,  120  Sidney,  etc.,  Co.  v. Warsaw  School  Di»- 

Ind.  279,  22  N.    E.    Rep.   247;   Rapp  v.  trict,  130  Pa.   St.  76,   iS    Atl.  Rep.  604; 

Kester,   125   Ind.   79;     Welsh   v.  State,  Morisey   v.  Swinson,  104  N.  C.  555,  to 

126  Ind.  71:   Burrell  v.  State,  2S  N.  E.  S.  E.  Rep.  754:  Chestnutt  v.  Pollard,  77 

Rep.  699;  Forelander  v.  Hicks,  6  Ind.  Texas,  86,  13  S.  W.  Rep.  852;   Kennedy 

44S;  Amory  v.  Reilly,  9  Ind.  490;   Mil-  v.  McNichols,  29  Mo.  App.  11. 
likin   v.  Osborne,  12  Ind.  480;  Black  v. 


QQQ  ERROR   IN  JUDICIAL  PROCEEDINGS. 

is.  it  will  yield  to  the  legitimate  recitals  of  the  record,  and  it 
can  not  be  invoked  by  a  party  in  opposition  to  his  own  admis- 
sions or  averments.1  The  presumption  of  which  we  are  speak- 
ing is  of  such  strength  as  to  cast  upon  the  party  who  assails  the 
rulings  of  the  trial  court  the  burden  of  making  it  clearly  appear 
that  the  rulings  were  wrong.  He  can  not,  with  hope  of  suc- 
cess, ask  the  appellate  tribunal  to  overthrow  the  rulings  of  the 
trial  court  upon  vague  inferences  or  remote  possibilities.  He 
will  fail  unless  he  overcomes  the  presumption  "  bv  making  error 
manifest."2 

§  712.  Record  susceptible  of  two  Contractions — That  which  sus- 
tains the  Judgment  will  be  Preferred — The  strength  and  scope  of 
the  presumption  in  favor  of  the  proceedings  of  the  trial  court 
are  illustrated  by  the  cases  which  hold  that  where  a  record  is 
susceptible  of  two  constructions  that  construction  which  will 
sustain  the  judgment  will  be  adopted.3  It  would,  however,  be 
pressing  the  doctrine  beyond  just  limits  to  carry  it  so  far  as  to 
hold  that  recitals  or  statements  of  the  record  will  be  disregarded, 
or  that  a  strained  and  unnatural  construction  will  be  adopted 
for  the  sake  of  saving  the  judgment.  We  suppose  that  in  no 
event  will  the  appellate  tribunal  disregard  the  unequivocal 
statements  or  recitals  of  the  record,  or  indulge  in  violent  and 
strained  intendments.  Where  the  record  is  contradictor}'  the 
presumption  is  that  the  part  is  true  which  shows  obedience  to 
the  law.4     Upon  this  principle  it  is  held  that  where  the  record 

1  Lucketts  v.  Townsend,  3  Tex.  119,  24  Pac.  Rep.  47;;;  Wynn  v.  Simons,  33 
S.  C.  49  Am.  Dec.  723;  Gates  v.  An-  Ala.  272;  Whipley  r.  Flower,  6  Cal. 
drews,  37  N.  Y.  657,  S.  C.  97  Am.  Dec.  630;  Sherman  v.  Palmer,  37  Mich. 
764;  McCaskey  v.  Graft",  23  Pa.  St.  321,  509.  See,  upon  the  general  subject, 
S.  C.  62  Am.  Dec.  336.  Lowen  v.  Crossman,  8  la.  325;   Worth- 

2  People  v.  Board,  23  111.  App.  386;  ington  v.  Olden,  31  la.  419;  David  v. 
O'Callahanz'.  Bode,  84  Cal.  4S9,  24  Pac.  Leslie,  14  la.  84;  Matter  of  Celina,  7 
Rep.  269;  Piatt  v.  Continental  Ins.  Co.,  La.  Ann.  162;  Keith  v.  Clark,  97  U.  S. 
62  \"t.  166.  19  Atl.  Rep.  637;  Powell  v.  4^4;  Parker  :•.  Medsker,  80  Ind.  155; 
Ashlock,  21  111.  App.  176;  Stevenson  v.  Graves  v.  Duckwall,  103  Ind.  560;  Bin- 
Sherwood,  22  111.  238,  S.  C.  74  Am.  Dec.  ford  v.  Miner,  101  Ind.  147;  Railsback 
140;  Parmelee  v.  Fischer,  22  111.  212,  v.  Walke,  81  Ind.  409;  Leary  v.  New, 
S.  C.  74  Am.  Dec.  13S;  Den  v.  Gra-  90  Ind.  502;  La  Follette  v.  Higgins,  109 
ham,  1  Dev.  &.  Batt.  76,  S.  C.  27  Am.  Ind.  241. 

Dec.  226;   Beach  v.   Packard,  10  Vt.  96,  *  Larillian  v.  Lane,  8  Ark.  372;  Foote 

S.  C.  33  Am.  Dec.  185.  v.  Lawrence,  1  Stew.  (Ala.)  483. 

1  Denver,  etc..  Co,  V.  Cowgill  (Kan.), 


PRESUMPTIONS.  667 

contains  two  verdicts,  the  one  good,  the  other  bad.  the  pre- 
sumption is  that  the  good  was  acted  upon  by  the  trial  court.1 
The  same  general  principle  governs  the  case  in  which  it  was 
held  that  where  a  finding  is  fairly  susceptible  of  two  construc- 
tions the  construction  which  will  uphold  the  judgment  will  be 
adopted.2  Our  decisions  which  assert  that  where  answers  to 
special  interrogatories  returned  by  a  jury  are  contradictory  the 
general  verdict  will  be  sustained  tacitly  affirm  the  doctrine  here 
stated,  although  different  reasons  are  assigned  by  the  decisions 
for  the  conclusion  reached.3 

§  713.   Presumptions  will  not  prevail  against  the  Record — The 

recitals  and  statements  of  the  record  are  stronger  than  the  pre- 
sumption which  exists  in  favor  of  the  proceedings  of  the  trial 
court.  Hence  it  is  always  implied  that  to  the  legitimate  state- 
ments of  the  record  the  presumption  will  yield  wherever  there 
is  conflict.  Nor  is  it  necessary  that  the  record  should  in  terms, 
or  even  by  direct  implication,  show  that  the  presumption  is  un- 
founded, for  if  it  affirmatively  appears  that  there  is  error  the 
presumption  will  give  way.  If  the  matters  of  record  are  such 
as  clearly  authorize  the  inference  that  there  was  probably  prej- 
udicial error  the  presumption  loses  all  force.4     The  record  is, 

1  Smith  v.  Camp,  S4  Ga.  117,  10  S.  E.  it  appears  from  the  return  of  the  officer 

Rep.  539.  or  the  proof  of  service  contained  in  the 

*  Schwab  7'.  Charles   Parker  Co.,  55  record  that  the  summons  was  served  at 

Conn.  370.  a  particular  place,  and  there  is  no  aver- 

3  \Vabash  Ry.  Co.  v.  Savage,  nolnd.  ment  of  any  other  service,  it  will  not 
156;   Hereth  v.  Hereth,  100  Ind.  35.  be  presumed  that  the  service  was  made 

4  In  the  case  of  Galpin  v.  Page,  18  at  another  and  different  place,  or  if  it 
Wall.  350,  364,  the  Supreme  Court  of  the  appears  in  like  manner  that  the  service 
United  States,  speaking  of  the  class  of  was  made  upon  a  person  other  than  the 
presumptions  we  have  under  discussion,  defendant  it  will  not  be  presumed  in 
said:  "They  have  no  place  for  consid-  the  silence  of  the  record  that  it  was 
eration  when  the  evidence  is  disclosed  made  upon  the  defendant  also."  While 
or  the  averment  is  made.  When,  there-  the  court  was  speaking  with  special 
fore,  the  record  states  the  evidence  or  reference  to  presumptions  of  jurisdic- 
makes  the  averments  with  reference  to  tion  what  it  said  applies  to  presump- 
a  jurisdictional  fact,  it  will  be  under-  tions  such  as  we  are  dealing  with  gen- 
stood  to  speak  the  truth  on  that  point,  erallv.  Upon  the  subject  of  the  effect 
and  it  will  not  be  presumed  that  there  of  record  recitals,  see  Bokerv.  Chapline, 
wa6  other  or  different  evidence  respect-  12  Iowa,  204;  Messenger  v.  Kintner,  1 
ing  the  facts  or  thai  the  fad  was  other-  Binn.97;  Blanton  v.  Carroll,  86  Va.  539, 
wise  than  as    averred,      [f,  for  example,  IO  S.  E.  Rep.  329;    Penobscot,  etc., Co.  v. 


668  ERROR   IN  JUDICIAL  PROCEEDINGS. 

however,  to  be  taken  as  an  entirety  and  the  questions  decided 
upon  it  as  a  whole.1  Upon  the  principle  stated  in  a  former  par- 
agraph it  is  held  that  where  the  recitals  of  the  record  are  con- 
tradictory the  court  will  accept  as  correct  the  recital  which  sus- 
tains the  proceedings  of  the  court  of  original  jurisdiction.2  The 
conclusion  that  the  recital  which  supports  the  proceedings  of 
the  trial  court  will  be  accepted  as  the  controlling  one  is  required 
by  considerations  of  harmony  and  consistency,  and  it  is  neces- 
sary in  order  to  give  just  effect  to  the  general  presumption  that 
judicial  tribunals  do  no  wrong.  Any  other  conclusion  would 
clash  with  the  settled  and  salutary  principle  that  the  appellant 
must  bring  to  the  appellate  tribunal  such  a  record  as  makes 
error  manifest. 

§  714.  Court  and  Judge — The  presumption  is  that  the  courr 
was  duly  organized  unless  the  record  discloses  facts  showing' 
that  it  was  not  so  organized.  The  authority  of  the  person  who 
assumes  to  discharge  the  functions  of  a  judge  is  presumed  to 
be  lawfuh  This  presumption  applies  to  a  special  judge  unless 
the  record  shows  a  well  founded  objection  to  his  capacity  to  act 
as  judge.3  The  later  cases  declare  the  doctrine  we  have  stated 
and  they  rest  on  sound  principle,  since  it  would  be  unreason- 
able to  assume  that  parties  quietly  sat  by  and  permitted  their 
cause  to  be  tried  by  an  intruder  or  usurper.  This  doctrine  can 
not,  of  course,  fully  prevail  where  there  is  no  law  authorizing  the 
appointment  of  judges  -pro  tern-pore,  nor  can  it  be  carried  so  far 
as  to  authorize  a  special  judge  to  appoint  another  special  judge.4 

Weeks,  52  Me.  456;   Dillard  v.  Central,  Schlunger  v.  State,  113  Ind.  295;  Board 

etc.,  Co.,  82  Va.  734,  1  S.  E.  Rep.  124;  v.  Courtney,  105  Ind.  311;    Rubush  v. 

Pollard  ^.Wegener,  13  Wis.  569;   Hahn  State,   112  Ind.   107;   State  v.  Murdock, 

v.  Kelly,  34  Cal.  391,  S.  S.  94  Am.  Dec.  86  Ind.  [24;   Powell  v.  Powell,  104  Ind. 

742.  iS,  29;  Smurr  v.  State,  105  Ind.  125,  133; 

1  Hering©.  Chambers,  103  Pa.  St.  172,  Ilenning  v.  State.  106  Ind.  386,  395,  S. 
175:  Ely  v.  Tallman,  14  Wis.  28;  Hahn  C.  55  Am.  Rep.  756;  State  v.  Baker,  63 
v.  Kelly,  34  Cal.  391,  S.  C.94  Am.  Dec.  N.  C.  276;  Hess  v.  Dean,  66  Texas,  663; 
7(2.  People  v.   Woodside,  72   111.  407;  Em- 

2  Conrad  v.  Baldwin,  3  Iowa,  207.  pire,  etc.,  Co.  v.  Engley,  14  Col.  2S9,  23. 

3  Bowen  v.  Swander,  121  Ind.  164,  22  Pac.  Rep.  452;   Reed  v.  Bagley,  24  Neb. 
N.  E.  Rep.  725;    Littleton  v.  Smith,  119  332;'State  v.  Hosmer,  S5  Mo. 553;  Ilar- 
Ind.  230;    Cargar  v.  Fee,  119  [nd.  536;  per  v.  Jacobs,  51  Mo.  296. 
Greenwood    v.    State,     116    Ind.    485;  *  Cargar  v.  Fee,  119  Ind.  536. 


PRESUMPTIONS. 


o«;:» 


The  appellate  tribunal  will  presume  that  the  courts  were  held 
at  the  proper  time  and  place,  and  that  all  was  done  that  the 
law  requires  to  make  the  holding  of  the  court  regular  and 
legal.1  Where  a  person  assumes  to  sign  a  bill  of  exceptions 
as  judge  it  will  be  presumed  that  he  had  authority  to  do  so.2 
Records  are  presumed  to  be  duly  signed  by  the  qualified  judge.3 
But  terms  of  court  must  be  held  at  the  time  specified  by  law, 
and  where  the  objection  is  appropriately  and  seasonably  made 
the  objection  may  prevail  if  the  record  properly  shows  that  it 
is  well  founded.1  Where  a  change  of  judge  takes  place  the 
presumption  is  that  the  change  was  made  upon  sufficient  rea- 
sons and  in  conformity  to  law.5  Where  the  record  is  silent  the 
presumption  is  that  a  judge  who  declined  to  try  a  case  had 
legal  reasons  for  his  action.6  That  a  special  judge  was  prop- 
erly appointed  will  be  presumed.7  Where  a  second  special 
judge  appears  and  hears  the  case  without  objection,  the  pre- 
sumption is  that  his  appointment  was  regular  and  that  legal 
cause  existed  for  his  appointment.8     But  where  the  record  dis- 


1  Wood  V.  Franklin,  97  Ind.  117; 
Hanes  v.  Worthington,  14  Ind.  320; 
Carlisle  v.  Gaar,  iS  Ind.  177;  Shirts  v. 
Irons,  2S  Ind.  45S;  Shircliff  v.  State.  96 
Ind.  369;  Smurr  v.  State,  105  Ind.  125. 
133;  Cass  v.  Krimbill,  39  Ind.  357; 
Porter  V.  State.  2  Ind.  435;  Myers  v. 
Mitchell  (S.  Dak.),  46  X.  W.  Rep.  245; 
Cook  v.  Skelton,  20  111.  107. 

2  Bowen  v.  Preston,  4S  Ind.  367. 

3  Indiana,  etc.,  Co.  v.  Bird,  116  Ind. 
217,  iS  N.  E.  Rep.  837.  See  McCray 
v.  Humes,  116  Ind.  103,  iS  N.  E.  Rep. 
500. 

4  Batten  v.  State,  So  Ind.  394;  Smurr 
v.  State,  105  Ind.  125,  [29;  McCool  v. 
State,  7  Ind.  37S;  Smithson  v.  Dillon, 
16  Ind.  169;  Newman  v.  Hammond,  46 
Ind.  119;  Ferger  v.  Wesler,  35  Ind.  53. 
But  the  objection  must  be  sustained  by 
the  record,  or  the  general  presumption 
will  prevail. 

6  People  V.  Mellon.  40  Cal  648.  The 
authority  of  the  special  judge  continues 
until  the  case   he   is  called   to   try,  with 


all  its  incidents,  is  fully  disposed  of. 
Staser  v.  Hogan.  120  Ind.  207;  Shugart 
v.  Miles,  125  Ind.  445;  Naffzieger  :•• 
Reed.  9S  M0.S7,  11  S.W.  Rep.  315;  Ex 
part,-  Clay,  98  Mo.  578,  11  S.  W.  Rep. 
99S;  Nebraska,  etc.,  Co.  v.  Maxon,  23 
Neb.  224.  36  N.W.  Rep.  492;  Harris 
Musgrave,  72  Tex.  iS,  9  S.  W.  Rep.  90; 
Dawson  v.  Dawson,  29  Mo.  App.  521. 
See.  generally,  upon  the  subject  of 
special  or  pro  tempore  judges.  Fire- 
stone v.  Hershberger,  121  Ind.  201.22 
N.  E.  Rep.  985;  Stary  v.  Winning,  7 
Ind.  111;  State  v.  Dufour,  63  Ind. 
Feaster  v.  Woodfill,  23  Ind.  493;  Zonker 
»..Cowan,  84  [nd.395;  Perkins  v.  I  lay- 
ward,  1  24  Ind. 445. 

6  Leonard  v.  Blair,  59  Ind.  510. 

7  Board  V.  Courtney.  105  Ind.  311; 
Schlunger  v.  State.  113  Ind.  295. 

8  Fassinow  v.  State.  89  Ind.  235,  2  {6, 
citing  Ilutts  v.  Ilutts,  51  Ind.  581; 
Glenn  v.  State,  46  Ind.  j<>s;  Singleton 
v.  Pidgeon,  21  Ind.  1  iS-  Cincinnati, 
etc.,  Co.  v.  Rowe,  17  Ind.  56S. 


670  ERROR   IN  JUDICIAL  PROCEEDINGS. 

closes    facts   showing   the   invalidity    of  the   appointment   of  a 
judge  pro  temfore  the  presumption  is  effectually  destroyed.1 

§  715.  Jurisdiction  of  Subject — Presumption  of — A  case  is  pre- 
sumed to  be  within  the  jurisdiction  of  a  court  of  superior  juris- 
diction unless  the  contrary  appears.2  This  doctrine  is  often  ex- 
pressed in  the  statement  that  "  nothing  shall  be  intended  to  be 
out  of  the  jurisdiction  of  a  superior  court  but  that  which  spe- 
cially appears  to  be  so."3  But  the  rule,  general  as  it  is,  has  its 
limitations.  Where  the  whole  of  a  general  subject  is  by  law- 
placed  within  the  exclusive  jurisdiction  of  a  designated  class 
of  tribunals,  no  presumption  can  arise  in  favor  of  the  authority 
over  that  subject  of  any  tribunal  not  belonging  to  the  class  to 
which  jurisdiction  of  the  general  subject  is  assigned  by  law. 
Thus,  where  jurisdiction  of  actions  involving  title  to  real  estate 
is  exclusively  lodged  in  one  class  of  tribunals,  jurisdiction  can 
not  be  exercised  over  that  subject  by  a  tribunal  not  belonging 
to  the  class  invested  with  jurisdiction.1  Where  the  record 
shows  affirmatively  and  clearly  that  the  case  belongs  to  a  class 
over  which  the  court  has  no  jurisdiction,  the  presumption  must 
yield.     But  jurisdiction  of  the  subject  means  much  more  than 


1  Haverlv,   etc.,    Co.   v.    Howcutt,  6  s  Gossett  v.  Howard,  io  O^  B.  359; 

Col.  1574.  Guilford  v.  Love,  49  Texas,  715;  Goar 

*  Board  v .  Markle,  46  Ind.  96;  Markel  v.  Maranda,  57  Ind.  339;  Holmes  v. 
v.  Evans,  47  Ind.  326;  State  v.  Smock,  Campbell,  12  Minn.  221;  Spaulding  v. 
20  Ind.  1S4;  Pate  v.  Tait,  72  Ind.  450;  Baldwin,  31  Ind.  376;  Butcher  v.  Bank, 
Houk  v.  Barthold,  73  Ind.  21;  Ragan  2  Kan.  70;  Reynolds  v.  Stansbury,  20 
v.  Harms.  10  Ind.  348;  Hyatt  v.  Coch-  Ohio,  244;  Hahn  v.  Kelly,  34  Cal.  391; 
ran.  69  Ind.  436;  Dean  v.  Miller, 66  Ind.  Wells  v.  Waterhouse,  22  Me.  131;  Ely 
440;  Rodman  v.  Rodman,  54  Ind.  444;  v.  Tallman,  14  Wis.  28;  Potter  v.  Mer- 
Dequindre  v.  Williams,  31  Ind.  444;  chants  Bank,  28  N.  Y. 641, 656.  Power 
Kinnaman  v.  Kinnaman,  71  Ind.  417;  to  decide  carries  with  it  authority  to 
Chapel!  v.  Shuee,  117  Ind.  481,  485;  decide  right  as  well  as  wrong.  Snelson 
Brown  v.  Anderson, 90  Ind.  93;  Brown-  v.  State,  16  Ind.  29;  Voorhees  v.  Jack- 
field  v.  Weicht,  9  Ind.  394;  Wilcox  v.  son,  10  Peters,  449;  Elliott  v.  Piersol,  1 
Moudy,  82  Ind.  219;  Godfrey  v.  God-  Peters,  328,340;  Ely  v.  Board,  112  Ind. 
frey,  17  Ind.  6;  Board  -v.  Legg,  115  Ind.  361,  36S;  Million  v.  Board,  89  Ind.  5; 
544;  Board  v.  Arnett,  116  Ind.  438,444;  Young  v.  Sellers,  106  Ind.  101. 
Bass  Foundry  Co.  v.  Board,  115  Ind.  *  Livesey  v.  Livesey,  30  Ind.  39S; 
234;  Shewalter  v.  Bergman,  123  Ind.  Wolcot  v.  Wigton,  7  Ind.  44;  Carpen- 
155.  ter  v.  Yanscotten,  20  Ind.  50. 


PRESUMPTIONS,  071 

jurisdiction  of  the  particular  case.1  It  may  be  shown  by  plea 
that  there  is  no  jurisdiction  of  the  particular  case,  and  thus  the 
presumption  will  be  rebutted  in  the  particular  instance,  but 
where  there  is  jurisdiction  of  the  general  subject,  the  presump- 
tion, in  the  absence  of  a  countervailing  showing,  averment,  or 
recital,  is  that  jurisdiction  exists  in  the  particular  instance. 
Thus,  the  circuit  court  has  jurisdiction  of  the  general  subject 
of  titles  to  land,  but  it  may  not  have  jurisdiction  of  the  particu- 
lar case  for  the  reason  that  the  land  lies  in  another  territorial 
jurisdiction,  but  until  it  is  shown  that  there  is  no  jurisdiction  in 
the  particular  instance  jurisdiction  will  be  presumed. 

§  716.   Exception  to  the  General  Rule — Judgment  by  Default — 

The  general  presumption  in  favor  of  jurisdiction  does  not  ex- 
tend to  cases  where  there  is  no  appearance  and  no  process,  or 
no  service,  and  judgment  is  rendered  upon  default.  The  case  of 
a  judgment  upon  default  rendered  where  there  is  no  appear- 
ance forms  an  important  and  well  defined  exception  to  the  gen- 
eral rule.2  It  is  important,  however,  to  bear  in  mind  that  there 
is  a  wide  and  radical  difference  between  cases  where  there  is 
an  appearance  but  a  subsequent  default  and  cases  where  there 
is  no  appearance  and  a  judgment  rendered  by  default,  because 
of  a  failure  to  obey  some  order  or  rule  of  court,  or  because  of 
a  failure  to  appear  at  the  trial.3  The  latter  cases  are,  it  is  evi- 
dent, within  the  general  rule. 

'Jackson    v.    Smith,   120    Ind.    520;  19  Ala.  104;   Wellborn   v.   Sheppard,  5 

Wolever  v.   State.  127   Ind.   306,  315;  Ala. 674;  Merritt v.White, 37 Miss. 438; 

Yates  v.  Lansing,  5  Johns.  2S2.  Glenn     v.    Shelburne,    29   Texas,    125; 

i  Ante,  §§  329  to 335, inclusive;  Young  Thigpen    v.    Mundine,  24    Texas.  2S2; 

v.  Dickey,  63  Ind.  31;    Houk  v.  Barth-  Abbe  v.  Marr,  14  Cal.  210;   Barreon  :• 

old,  73  Ind.  21;    Cole  v.  Allen,  51  Ind.  Frink,  30  Cal.  486;    Holleck  v.  Jauden, 

122:     New  Albany,  etc.,  Co.   :•.  Welsh,  34  Cal.  167;     Bosch   :•.  Kassing,  64    la. 

9  Ind.  479;   Bryant  V.  Richardson,    126  312,  20  N.  W.  Rep.  354;   Smith  v. Ellen* 

Ind.  145;  Woolery  v.  Grayson,  1 10  Ind.  dale   Mill  Co.,  4  Ore.  70;   Kitsmiller  :. 

149;    Townsand   v.  Townsand,  21    111.  Kitchen,  24  la.  163. 

540;  Bascom  v.  Young,  7  Mo.  1;  John-  3  Langdon    :•.    Bullock,  S    Ind.   341; 

son  v.  Dellridge,  35  Mich.  436;  Duncan  Archibald   v.  Lamb,  9  Ind.  544;    Mc- 

V.  Gerdinc,   59  Mi>s.   550;    State  V.  Bil-  Kinney  V.  State,  101   Ind.  355;    Lilly  ~'. 

lings,  23   La.   Ann.    798;    Wilkinson    v.  Dunn,  96  Ind.  220,  225. 
Bayley,  71  Wis.  131;   Amason  v.  Nash, 


672 


ERROR   IN  JUDICIAL   PROCEEDINGS. 


§  717.  Presumption  of  Jurisdiction  is  not  Rebutted  by  the  Silence 
or  Iucompleteness  of  the  Record — It  is  an  established  general  rule 
that  the  presumption  in  favor  of  the  jurisdiction  of  a  superior 
court  is  not  impaired  or  destroyed  by  the  failure  of  the  record 
to  affirmatively  show  jurisdiction,  but  to  the  general  rule  there  is 
the  well  defined  exception  already  stated.  An  incomplete  or 
silent  record  will  not,  as  a  general  rule,  authorize  the  inference 
that  jurisdiction  did  not  exist.  The  defect  in  the  record  is 
supplied  by  the  presumption  that  the  court  did  not  usurp  au- 
thority nor  wrongfully  exercise  jurisdiction.1  It  was  held  in 
one  case  that  where  the  papers  were  lost  it  would  be  presumed 
that  the  case  was  one  in  which  judgment  by  default  was  au- 
thorized.2 Incomplete  and  defective  recitals  indicating  that 
there  was  an  appearance  will  sustain  the  presumption."'  Where 
the  record  refers  to  an  agreement  but  does  not  set  it  out,  the 
presumption  is  that  it  authorized  the  decree.4  Where  the  riling 
of  an  affidavit  is  a  prerequisite  to  jurisdiction  the  silence  of 
the  record  warrants  the  presumption  that  the  affidavit  was  filed.5 

1  Nichols  v.  State,  127  Ind.  406,  413;  s  Crank  v.  Flowers,  4  Heisk.  629; 
O'Brien  v.  State,  125  Ind.  38;  Sims  v.  Welsh  v.  Childs,  17  Ohio  St.  319.  See, 
Gay.  109  Ind.  501;  Jackson  v.  State,  generally,  Sloan  v.  McKinstry,  18  Pa. 
104  I  ml.  516;  Exchange  Bank  v.  Ault,  St.  120;  Baldridge  v.  Penland,  6S  Tex. 
102  Ind.  322,  1  N.  E.  Rep.  562;  Albert-  441,  4  S.  W.  Rep.  565;  Credit  Foncier 
son  v.  State,  95  Ind.  370;  Pickering  v.  v.  Rogers,  10  Neb.  1S4.  4  N.  W.  Rep. 
State,  106  Ind.  228;  Cassady  v.  Miller,  1012;  Woodhouse  v.  Fillbates,  77  \'a. 
106  Ind.  69;  Dvviggins  v.  Cook,  71  Ind.  317;  Ray  v.  Rowley,  1  Hun.  614; 
579;  State  V.  Ennis,  74  Ind.  17;  lies  v.  Sheer  v.  Bank  of  Pittsburgh,  16  How. 
Watson,  76  Ind.  359;  Crane  v.  Kim-  (U.S.)  571;  Morrow  v.  Weed,  4  la.  77. 
mer,  77  Ind.  215,  219;  Waltz  v.  Borro-  4  Collins  v-  Loyal,  56  Ala.  403;  Hearn 
way,  25   Ind.  380;     Dequindre  V.  Will-  v.  State,  62  Ala.  218. 

iams,  31  Ind.  444;   Alexander  v.  Feary,         5  Dean  v.  Thatcher,  3  Vroom.  (N.  J.) 

9  Ind.  4S1;   Doe  v.  Harvey,  3  Ind.  104;  470;  Newcomb  v.  Newcomb,  13  Bush. 

Doe  v.  Smith,  1   Ind.  451;     Horner  v.  544.    See,  as  to  effect  of  defective  notice, 

Doe,   1   Ind.   130;     Mathis  v.  State,  94  Paine  v.  Moreland,  15  Ohio,  435;  Beech 

Ind.  562;   Pointer  v.  State,  89  Ind.  255;  v.  Abbott,  6  Vt.  586;  Glover  v.  Holman, 

Coit  v.  Haven,  30  Conn.  190;     Lawler  3  Heisk.    519;    Wert   v.  Williamson,   1 

v. White,  27  Texas,  250;  Swearengen  v.  Swan.  277;   Moomey  v.  Maas,  22  Iowa, 

Gulick,  67  111.  20S;   Evans  v.  Young,  10  3S0;  Peck  v.  Strauss,  33  Cal.  678;  Town 

;i6,    1 5    Pac.   Rep.  424;     Sharp  v.  of  Lyons  v.  Cooledge,  89  111.  529;   Sac- 

Brunnings,  35   Cal.    1,28;     Messenger  v.  ramento  Savings  Bank   v.   Spencer,  53 

Kintner,  4  Binn.  97.  Cal.  737;   Kingman  v.  Paulson.  126  Ind. 

2  Fogg  v.  Gibbs.  8  Baxt.  464;  Ilerrick  507;  Lantzr.  Maffatt,  102  Ind  23;  Ante, 
v.  Butler,  30   Minn.  156,  14  N.  W.  Rep.  §§  330,  331,  332,  m,  334. 

794- 


PRESUMPTIONS. 

It  has  also  been  held  that  the  failure  of  the  record  to  show  that 
the  proper  preliminary  steps  were  taken  to  authorize  a  judg- 
ment by  confession  did  not  impair  the  validity  of  the  judgment 
inasmuch  as  it  would  be  presumed  that  all  was  done  that  the 
law  required.1 

§  718.  Judgment  of  Trial  Court  is  Presumed  to  be  properly  Sup- 
ported— The  general  presumption  is  that  the  judgment  of  a  ju- 
dicial tribunal  is  supported  by  whatever  is  essential  to  its  va- 
lidity and, effectiveness.  It  will  be  assumed  on  appeal,  in  cases 
where  the  record  is  silent,  that  the  preliminarv  steps  necessary 
to  impart  vitality  and  force  to  a  judgment  were  duly  taken.2 
This  rule,  in  effect,  does  no  more  than  assert  that  the  judgments 
of  judicial  tribunals  can  not  be  deemed  foundationless  where 
their  lack  of  support  does  not  appear  affirmatively,  and  it  is  ob- 
vious that  this  rule  is  just,  for  certainly  judicial  tribunals  are 
entitled  to  an  intendment  or  presumption  that  their  judgments 
rest  on  proper  foundations. 

§  719.  Pleadings — Presumption  that  the  Judgment  is  within  and 
Founded  on — In  the  absence  of  a  recital  or  statement  in  the 
record  to  the  contrary  the  presumption  is  that  the  judgment  is 
within  the  issues  and  supported  by  the  appropriate  pleadings.3 

1  Caley  v.  Morgan,  114  Ind.350.  We  complish  what  only  objections  and  ex- 
are  not  unmindful  of  the  fact  that  there  ceptions  can  accomplish. 
is  a  radical  difference  between  a  collat-  *  Robb  v.  Ankeny.  4  Watts  &  S.  12S; 
eral  attack  upon  a  judgment  and  a  direct  Bell  v.  Davis,  1  Cal.  134;  Headly  :•. 
attack  by  appeal,  nor  are  we  unmind-  Board,  4  Blackf.  116;  Taylor  v.  Carpen- 
ful  of  the  fact  that  in  many  cases  cited  ter,2  Sandf.  Ch.  603;  Campbell  v.  Dool- 
the  decisions  referred  especially  to  a  ing,  26  Ark.  647;  Ex  parte,  Donaldson, 
collateral  attack.  Hut  the  principle  to  44  Mo.  149;  Howell  :\  Morlan,  78  111. 
which  the  cases  are  cited  is  that  which  162;  Wise  v.  Ringer,42  Ala. 488;  Mid- 
as>erts  that  the  silence  of  the  record  land,  etc.,  :'.  McCartney,  I  Neb. 
does  not  overcome  the  presumption  See,  generally,  State  v.  A. lams.  84  Mo. 
that  the  proceedings  of  the  court  were  310.  Baker  :■.  Armstrong,  ;;  Ind. 
regular  ami  legal,  for  that  presumption  iS,»;  Abbott  :\  Johnson,  47  Wis.  239; 
exists  even  in  the  ease  of  appeal  where  Mayes  v.  Goldsmith,  58  Ind.  94. 
there  is  no  averment  or  no  fact  oppos-  3  Iron-  v.  Collins.  S(>  Ala.  108;  Citi- 
ing  it.  There  must,  indeed,  be  objec-  zens'  Hank  :.  Bolen,  121  Ind.  301.  23 
tion,  exception,  and  a  due  reservation  N.  E.  Rep.  146;  Buecher  v.  Casteen, 41 
of  a  ruling  for  review,  and.  of  course,  a  Kan.  141,  2  1  Pac.  Rip.  112;  Rundell 
silent  or  incomplete  record  can  not  ac-  V.  Kalbfus,   125   Pa.  St.   123;   Brassfield 

43 


tjy^  ERROR  IN  JUDICIAL  PROCEEDINGS. 

Where  there  are  material  and  immaterial  issues,  the>  presump- 
tion is  that  the  immaterial  issue  was  disregarded  and  the  judg- 
ment given  on  the  material  issue,  unless  the  record  expressly  or 
by  clear  implication  shows  the  contrary.1  Where  a  demurrer 
is  overruled  to  the  evidence  and  there  is  one  good  and  one  bad 
paragraph  of  complaint,  the  appellate  tribunal  will  presume 
that  the  judgment  was  rested  on  the  good  paragraph.2  The 
general  doctrine  that  the  presumption  is  that  the  judgment  is 
founded  on  proper  pleadings  finds  a  striking  illustration  in  the 
cases  which  hold  that  where  an  indictment  contains  several 
counts,  some  good  and  some  bad,  the  presumption  is  that  the 
judgment  is  founded  on  the  good  counts.3  It  is  proper  to  here 
note  that  the  rule  has  no  application  where  a  timely  objection 
challenging  the  pleading,  either  in  a  civil  or  criminal  case,  is 
made  in  the  trial  court,  for  if  the  pleading  is  there  duly  assailed 
and  a  wrong  ruling  is  made,  there  is  no  presumption  that  the 
judgment  is  right;  on  the  contrary,  the  presumption  is  (unless 
rebutted,  as  it  may  be  by  the  record),  that  the  error  influenced 
the  ultimate  decison.4  The  rule  last  stated  is  a  just  one,  since 
it  is  but  reasonable  to  assume,  in  the  absence  of  averments  or 
recitals  to  the  contrary,  that  the  court  carried  the  theory  an- 
nounced in  its  ruling  on  the  pleadings  throughout  the  case. 

§  720.  Presumption  that  Rulings  on  Pleadings  were  Correct — 

The  party  who  asserts  that  a  ruling  upon  a  pleading  was  er- 

v.  Burgess  (Ky.),   10  S.  W.  Rep.   122:  Murphy  v.    Commonwealth,  23  Gratt. 

Calder  v.  Smalley,  66  Iowa,  219.     See,  960;    State   v.   O'Brien,    21    La.    Ann. 

generally,  Lay  v.  Lawson,  23  Aid.  377.  265;    Lyons    v.    People,    6S    111.    271; 

1  Harvey  v.  Laflin,  2  Ind.  477;  State  Brown  v.  State,  5  Eng.  607;  Parker  v. 
:  .  Hood,  7  Blackf.  127.  Commonwealth,  8  B.  Monr.  30;  Isham 

2  Ohio,  etc.,  Co.  v.  Collarn,  73  Ind.  v.  State,  1  Sneed,  in;  State  v.  Shelle- 
261;  Myrick  v.  Meritt,  22  Fla.  335.  dy,  S  Iowa.  477;  Hudson  v.  State,  34 

3  Powers  v.  State,  87  Ind.  97;  En-  Ala.  253;  West  v.  State,  2  Zabr.  212; 
wright  v.  State,  58  Ind.  567;  Jennings  v.  People  v.  Curling,  1  Johns.  320;  State 
Commonwealth,  17  Pick.  So;  Stoughton  v.  Stebbins,  29  Conn.  463;  Guenther  v. 
v.  State,    2   Ohio  St.    562;    Roberts   r.  Peeple,  24  N.  Y.  100. 

.  14  Ga.  S;  State  v.  Montgomery,  *  Wolf    v.    Schofield,   38    Ind.    175; 

28  Mo.  594;  United  States  v. Burroughs,  Peery  v.  Greensburgh,  etc.,  Co.,  43  Ind. 

3    McLean.  405;  State   v.  Connolly,  3  321;  Bailey    7'.   Troxell,  43    Ind.   432; 

Rich.  L.  337;    State  v.  Miller,   7  Ired.  Schafer  v.  State,  49   Ind.  460;   Evans- 

275;    Arlen    v.    State,    iS    N.    H.    563;  ville,  etc.,  Co.  v.  Wildman,  63  Ind.  370. 


PRESUMPTIONS. 


675 


roneous  must  affirmatively  show  his  assertion  to  be  correct, 
otherwise  the  presumption  that  the  court  rules  correctly  upon 
the  pleadings  will  prevail  against  him.1  Thus,  where  a  de- 
murrer is  overruled  and  is  not  in  the  record  the  presumption  is 
that  the  demurrer  did  not  assign  the  proper  cause,  or  that  the 
pleading  demurred  to  was  not  liable  to  the  objection  urged  by 
the  demurrer.2  So,  it  is  presumed  that  whatever  issues  were 
required  to  be  decided  were  decided.3  Where  pleadings  are 
necessary  but  none  are  filed  the  presumption  is  that  they  were 
waived  by  the  express  or  implied  agreement  of  the  parties.4 
Pleadings  appearing  in  the  record  and  acted  upon  by  the  court 
are  presumed  to  have  been  properly  filed. s  All  issues  are  pre- 
sumed to  have  been  correctly  submitted  for  decision  and  regu- 
larly and  justly  decided.6  Amendments  will  be  presumed  to 
have  been  made  at  the  proper  time  and  in  the  appropriate 
mode.7  Improper  counts  may  be  treated  as  having  been  struck 
out.3  Where  no  ruling  is  shown  it  will  be  presumed  that  a 
ruling  was  expressly  or  impliedly  waived,  or  if  necessary,  was 
correctly  made.9     Where  a  notice  is  requisite  to  give  effective- 


1  Holding  v.  Smith,  42  Ind.  536; 
Blinks  v.  State,  48  Ind.  172;  Sigler  v. 
Woods,  1  Iowa,  177;  Moore  v.  Gilbert, 
46  Iowa,  50S;  First  Nat.  Bank  v.  Car- 
penter, 41  Iowa,  51S;  Supreme  Lodge 
of  Knights  of  the  Golden  Rule  v.  Rose, 
62  Texas,  321;  Basey  v.  Gallagher,  20 
Wall.  670;  Johnston  v.  Holmes.  32  So. 
Car.  434,  11  S.  E.  Rep.  20S;  Conowav  v. 
Weaver,  1  Ind.  263;  Dritt  v.  Dodds,  35 
Ind.  63;    Murphy  v.  Clayton,  51    Ind. 

H7- 

2  Crowell  V.  City  of  Peru,  41  Ind.308; 
Comer  v.  Ilimes,  49  Ind.  4S2.  It  is  only 
the  legitimate  statements  of  the  record 
— not  the  recitals  of  the  clerk — thai  can 
overcome  the  presumption.  Blany  v. 
Finley,  2  Blackf.  338;    Wilson  v.  C 

2  Blackf.  402;  Richardson  v.  St.  Joseph 
Iron  Co.,  5  Blackf.  146;  Conoway  v. 
Weaver,  1  Ind.  263. 

'  Bottorf  :•.  Wise,  53  Ind.  32;  Hargus 
v.  Goodman,  12  Ind.  629;  Indianapolis, 
etc.,  Co.  V.  Clark.  21  Ind.  150;    Brandon 


v.  Judah,  7  Ind.  545;  Walker  p.  Houl- 
ton,  5  Blackf.  34S;  Buntin  v.  Weadle, 
20  Ind. 449. 

4  Campbell  v.  Hayes,  77  Cal.  36,  iS 
Pac.  Rep.  S60;  Gordon  v.  Donahue 
(Cal.),  21  Pac.  Rep.  970;  Salisbury  v. 
Bartleson,  39  Minn.  t,(^.  40  N.  W.  Rep. 
265;  Wvvell  v.  Jones,  37  Minn.  68.33 
\.  W.  Rep.  4.3;  Butler©.  Winona  Mill 
28  Minn.  205;  Jones©.  Wilder.  .,v> 
Minn.  238;  Davidson  v-  Farrell,  S  Minn. 
258;  Libby  v.  Ilu.-by,  28  Minn.  40;  Hol- 
land v.  Union  County,  6S  Iowa.  56; 
Hervev  p.  Saverv.  48  Iowa,  313. 

•'  Bennetl  v.  Abbett,  51  Ind.  252; 
1  v.  Halderman,  75  Ind.  564. 

6  Dorr  r.  McDonald,  43  Minn. 458,  15 
X.  W.  Rep.  S64. 

T  Kelsev   v.  Chicago,  etc.,  Co 

Dak.   ,    j.5   \.   W.  Rep.  204. 

s  Schirmeier  v.  Baecker,  20  111.  App 

373* 

j  Va.  832,  1  S.E. 

Rep.    67;     Birmingham,    etc.,    Co.    v. 


676  ERROR   INJUDICIAL   PROCEEDINGS, 

ness  to  a  ruling  upon  the  pleadings  the  presumption  is  that  it 
was  given  as  the  law  requires.1 

§  721.  Rulings  on  the  Evidence — Presumptions  respecting — It  is 
so  well  settled  that  the  rulings  of  the  trial  court  in  admitting  or 
excluding  evidence  are  presumed  to  be  right,  that  it  is  unneces- 
sary to  refer  to  authorities  upon  the  general  subject.  It  is 
everywhere  agreed  that  a  party  who  assails  a  ruling  admitting 
or  excluding  evidence  must  bring  to  the  appellate  court  a  record 
clearly  exhibiting  the  ruling  and  showing  it  to  be  manifestly 
erroneous  As  there  is  no  doubt  as  to  the  existence  of  the  gen- 
eral doctrine,  as  much  as  it  is  necessary  or  profitable  to  do  is 
to  call  attention  to  some  instances  showing  peculiar  applications 
of  the  settled  general  doctrine.  It  may  not  be  improper  to  pre- 
face a  reference  to  the  particular  instances  by  the  general  state- 
ment that  the  decisions  all  agree  upon  one  point,  and  that  is 
this  :  There  must  be  full  and  satisfactory  record  proof  that  the 
ruling  relied  upon  as  a  cause  for  reversal  was  wrong,  for,  if 
circumstances  or  facts  can  be  legitimately  inferred  which  will 
authorize  the  conclusion  that  the  ruling  was  right,  the  presump- 
tion will  prevail,2  and,  hence,  it  is  sometimes  necessary  to  so 
frame  the  record  as  to  exclude  facts  or  circumstances  that  will 
authorize  an  inference  supporting  the  ruling,  although  it  is  not 
necessary  to  anticipate  or  provide  against  forced  and  unnatural 
inferences.  We  may  with  propriety  begin  our  reference  to  par- 
ticular instances  by  directing  attention  to  one  of  our  own  cases 
wherein  it  was  held  that  although  a  witness  was  in  court  a 
few  hours  before  his  deposition  was  read,  yet  it  would  be 
presumed  that  reasons  existed  justifying  the  reading  of  the 
deposition.3  A  deposition  is  presumed  to  have  been  authenti- 
cated by  the  certificate  of  the  proper  officer.'1  The  general  doc- 

Wilder,   85    Ala.  593,  5   So.  Rep.  307;  Rep.  707;   Howard  v.  Kopperl,  74  Tex. 

v.  Gallagher, 20  Wall.  670;  United  494,  5  S.  W.  Rep.  627.     A  state  of  facts 

Barnard,   1    Ariz.  319,  25  Pac.  required   to   make  evidence  competent 

Rep.  523;   Newcomb  v.  White  (X.  M.).  may  be  presumed.     Gray  v-  Montgom- 

23  Pac.  Rep.  671,  cry.  1713.66;  Chase  v.  Scott,  33  la.  309. 

1  Chattanooga,  etc.,   Co.  ».    Jackson,  3  Louisville,  etc.,  Co.z>.  Hubbard,  110 

'.676,   13   S.   I"..  Rep.  [09;    Bishop  Ind.   193.     See.  generally,  Ilunsinger  v. 

7     Morris,  22  [11.  App.  Ct.  564.  Holer,  no  Ind.  390. 

-'  Mercer    v.    Corbin,    117    Ind.    ^50;  *  Sullivan  ?•.  Missouri  Pacific  R.  Co., 

Dorbert  v.  State,  6S  Md.  209,  11   Atl.  97  Mo.  113,  10  S.  W.  Rep.  852. 


PRESUMPTIONS.  (J77 

trine  is  that  written  evidence  received  by  the  court  is,  in  all 
cases  where  the  contrary  does  not  appear,  presumed  to  have 
.been  duly  authenticated.1  Where  depositions  are  excluded, 
the  presumption  is  that  sufficient  reasons  existed  for  excluding 
them,  as,  for  instance,  that  they  were  not  filed  in  time.1'  Where 
documentary  evidence  is  admitted  by  the  court,  the  presump- 
tion is  that  it  was  competent.3  Where  a  witness  is  competent 
as  to  some  matters  in  controversy  and  incompetent  as  to  others, 
it  will  be  presumed,  the  contrary  not  appearing,  that  he  was 
permitted  to  give  testimonv  as  to  such  matters,  only,  as  he  was 
competent  to  testify  to.4  Where  witnesses  are  permitted  to 
give  testimony  as  experts,  the  presumption  is  that  the  court 
duly  ascertained  their  competency  to  testify  as  experts  before 
allowing  their  testimony  to  go  to  the  jury.5  If  evidence  not 
appearing  in  the  record  is  required  to  make  the  evidence 
fered  competent,  it  will  be  presumed  that  the  offered  evidence 
was  excluded  for  the  reason  that  none  was  given,  making  com- 
petent that  offered.6 

§722.  Instructions  —  Presumptions  concerning  —  It  has  been 
again  and  again  decided  that  the  trial  court  is  presumed  to 
have  given  the  jury  correct  instructions  upon  all  the  mate- 
rial points  in  the  case.  A  party  who  desires  to  break  the  force 
of  this  presumption   must  present  to  the  trial  court  a  record 

1  Barnhart  v.  Ford,  41  Kan.  341,  Wall.  162;  Leedom  v.  Lambaert,  So  Pa. 
21  Pac.  Rep.  239;  Holton  v.  Kemp,  St.  3S1;  Coxe  v.  Deringer,  $2  Pa.  St. 
81  Mo.  661;  Towne  v.  Bossier,  19  La.  236; Bemes v.  Jennings, 46  Vt.45;  Pres- 
Ann.  162;  Morris  v.  Ogle,  5663.592.  ton  v.  Wright,  60  Iowa,  351;  Dodge  v. 
See,  generally,  Rice  v.  Cunningham,  29  Coffin,  15  Kansas,  277;  Burke  v.  Pin- 
Cal.  492;  Smith  v.  Williamson,  6  Hal.  nell,  93  Ind.  540;  Outlaws.  Davis,  27 
(N.J.)  313.  111.  466;  Brown  v.  Gill,  49  Ga.  549;  Mer- 

2  Leinpo  v.  State,  2S  Texas  App.  179,  ritt  v.  Baldwin,  6  Wis.  439;  Morgan  v. 
12  S.  W.  Rep.  588.  State,  12  Ind.  44S. 

3  Carroll  v.  Peake,  1  Pet.  iS.  The  *  Commonwealth  v.  Mosier,  135  Pa. 
case  cited  really  does  no  more  than  give  221.  [9  Atl.  Rep.  943;  Van  Brunt  v. 
effect  to  the  long  and  well  settled   rule  Greaves,  ;-•   Minn.  6S. 

(enforced  in  a   multitude  of  cases)  that  5  Blumhardt  0.  Rohr,  70  Md.  328,  17 

judicial    decisions   are   presumed    to   he  Atl.  Rep.  266. 

rightfully  made  and  properly  recorded.  G  Condeno.  Morningstar, 94  Ind.  [50; 

Bohun  v.  Delessert,  2  Coop.  Ch.  Cases,  Brown  v.  Owen,  94  Ind. 31:  Smi*h   :. 

Pt. I,  21  Gossetc  Howard,  toQ.  B.359,  Laumier,  12  Mo.  App,  546;   Abshire  v. 

411;     Garnharts    v.    United    States,   16  Williams.  76  Ind.  97. 


678  ERROR   IN  JUDICIAL  PROCEEDINGS. 

fully  and  clearly  showing  that  the  trial  court  erred  in  giving  or 
in  refusing  to  give  instructions.  There  is  no  contrariety  of 
opinion  upon  the  general  subject  so  that  it  would  be  unprofita- 
ble, as  well  as  unnecessary,  to  cite  the  authorities  upon  the 
subject,  although  it  would  be  easy  to  collect  a  vast  number  of 
decisions.  The  presumption  is  not  overcome  by  bringing  part, 
only,  of  the  instructions  into  the  record,  since  the  presumption 
is  that  those  not  in  the  record  cured  errors  or  defects  in  those 
that  were  given  to  the  jury.1  It  is  necessary,  in  order  to  break 
the  force  of  the  presumption,  to  bring  all  of  the  instructions 
into  the  record,  or  to  show,  where  such  a  showing  is  allowable, 
that  the  instructions  not  in  the  record  do  not  affect  the  point  in 
controversy.2  Where  the  instructions  state  the  issues  between 
the  parties  or  the  theories  assumed,  the  presumption  is  that  the 
statement  is  correct.3  Where  facts  are  assumed  in  the  instruc- 
tions the  appellate  tribunal  will  presume,  in  the  absence  of  any- 
thing to  the  contrary,  that  they  were  assumed  by  the  trial  court 
for  the  reason  that  they  were  admitted  by  the  parties,  or  were 
fully  established  by  uncontradicted  evidence.4  Where  the  evi- 
dence is  not  in  the  record  the  general  presumption  will  save 
the  instructions  if  they  can  be  regarded  as  correct  upon  any 
supposable  state  of  facts  under  the  issues.5 

1  Cobb  v.  Malone,  91  Ala.  38S;  Hal-  v.  Tomlinson,   91  Ind.  167;  Garrett  v. 

sev  v.  Darling,  13  Col.  1,  21  Pac.  Rep.  State,  109  Ind.  527;  Pittsburgh, etc.,  Co. 

913;  Crouse  v.  Rowley,  3  N.  Y.  S.  863;  v.    Noel,    77    Ind.    no;    Newcomer   v. 

McCarty  v.  Chicago,  etc.,  Co.,  34  111.  Hatchings,  96   Ind.  119;    Delhaney   v. 

App.  273;   Whiting  v.  City  of  Kansas,  State,    115  Ind.  499;  Walker  v.   State, 

59  Mo.  App.  259;  Fernbach  v.  City  of  102  Ind.  502;  National  Benefit  Associ- 

\\  aterloo,76Ia.  59S.  41  N.W.  Rep.  370;  ation  v.  Grauman,  107  Ind.  2SS;  Cline 

Ford  v.  Ford,  no  Ind.  89;  Lehman  v.  v.  Lindsey,  no  Ind.  337;    Stephenson 

Hawks,  121  Ind.  541;   Stott  v.  Smith,  70  v.  State,  no  Ind.  358. 

Ind.  29S;  Bowen?.  Pollard,  71  Ind.  177;  3  Drinkout  v.  Eagle  Machine  Works, 

Freeze  v.  De   Puy,   57  Ind.   18S;  Puett  90  Ind.  423;  Cory  v.  Silcox,  6  Ind.  39; 

v.  Beard,  S6  Ind.   104;  Clore  v.    Mcln-  Legget  v.  Harding.  10  Ind.  414. 

tire,  120  Ind.  262;   Stull  v.  Howard,  26  4  Wilson  v.  Atlanta,  etc.,  Co.,  82  Ga. 

Ind.  456;  Marshall  v.  Lewark,  117  Ind.  3S6,  9  S.  E.  Rep.   1076;   Hinds  v.  Har- 

bou.  5S  Ind.  121. 

City  of  New  Albany  v.  McCulloch,  5  Abrams  v.  Smith.  8  Blackf.  95 ;  Keat- 

1:7  Ind.  500;  Grubb  v.   State,  117  Ind.  ing   v.    State,   44   Ind.   449:   Higbee  v. 

277,  279;  Cooper  v.  State,  120  Ind.  377;  Moore,  66   Ind.  263;  Elkhart,  etc.,  As- 

Taber  v.  Grafmiller,  109  Ind.  206;  Ken-  sociation  v.   Houghton,   103   Ind.   2S6; 

nedy  v.  Anderson^S  Ind.  151 ;   Mitchell  Joseph  v.  Mather,  1 10   Ind.    114;   Weir, 


.->/  / 


PRESUMPTIONS. 


679 


§723.  Juries  and  Jnrors — Presumption  Concerning — The  pre- 
sumption is  that  juries  are  properly  summoned  and  impaneled.1 
It  is  presumed  that  jurors  sworn  to  try  a  cause  were  duly  quali- 
fied.2 In  short  the  presumption  is  that  all  was  done  that  the  law 
requires,  and  that  lawful  persons  were  selected  and  served  as 
jurors.3  The  presumption  is  that  the  court  duly  admonished  the 
jury  as  to  their  duty.1  Where  challenges  to  jurors  are  sus- 
tained, the  presumption  is  that  the  challenges  were  correctly 
allowed/'  It  will  also  be  presumed  that  the  trial  court  allowed 
a  party  the  number  of  peremptory  challenges  given  him  by  the 
law.6 

§  724.   Verdicts — Presumptions  in  aid  of— It  will  be  presumed 
that  jurors  have  rightfully  performed  their  duty  and  have  re- 


etc,  Co.  v.  Walmsley,  no  Ind.  242; 
Smith  v.  Heller,  119  Ind.  212;  Collis  v. 
Bowen,  8  Blackf.  262;  Ball  v.  Cox,  7 
Ind.  453;  Cartwright  v.  Yaw,  100  Ind. 
119;  State  v.  Frazer,  2S  Ind.  196;  List 
v.  Kortepeter,  26  Ind.  27;  Ruffing  v. 
Tilton,  12  Ind.  259.  If  wron^  upon  any 
supposable  state  of  facts  the  presump- 
tion will  not  avail.  Rappv.  Kester,  125 
Ind.  79;  Murray  v.  Fry,  6  Ind.  371.  It 
requires  an  extraordinarily  strong  case 
to  defeat  the  presumption.  It  seems 
that  where  it  can  be  fairly  and  reason- 
ably inferred  that  admissions  were  made 
supplying  averments  the  presumption 
will  prevail. 

1  People  V.  Board  of  Supervisors,  23 
111.  App.  3S6,  S.  C.  125  111.  334,  17  X. 
E.  Rep.  802;  Breden  v.  State,  SS  Ala. 
30,  7  So.  Rep.  25S;  Parker  v.  People,  13 
Col.  155,  21  Pac.  Rep.  1120;  State  :•. 
Jones,  97  N.  C.  469,  1  S.  E.  Rep.  6S0; 
Dove  v.  Commonwealth.  82  Va.  301; 
State  v.  Jones,  61  Mo.  232;  Holloway 
V.  State.  53  Ind.  554;  Page  V.  Com- 
monwealth. 27  Gratt.  954;  Osgood  v. 
State.  64  Wis.  472;  Chicago,  etc..  Co. 
v.  Aldrich.  134  111.  9,  -|  V  E.  Rep.  763. 

2  Willey  v.  State,  |<.  Ind.  563;  Brad- 
ford   :'.  State.    15    Ind.   347:    Mansell   v. 


Queen,  8  Ell.  &  B.  54;  Chesapeake, 
etc.,  Co.  v.  Patton.  9  W.  Va.64S;  Shoe- 
maker v.  State  12  Ohio,  43;  Isham  v. 
State,  1  Sneed,  m;  Keenan  v.  State. 
8  Wis.  132;  State  v.  Roderigas,  7  Nev. 
328;  State  v .  Millin,  3  Nev.  409;  State 
v.  Shaw,  5  La.  Ann.  342. 

3  Kessler  v.  State,  50  Ind.  229;  Van- 
derkarr  v.  State,  51  Ind.  91;  Lovell  v. 
State,  45  Ind.  550;  Sater  v.  State,  56 
Ind.  37S;  Ward  v.  State,  48  Ind.  289; 
Bailey  v.  State,  39  Ind.  43S;  Bell  :■. 
State,  42  Ind.  335;  Long  v.  State,  46 
Ind.  582;  Holloway  v.  State.  53  Ind. 
55  \:  Piercer.  State,  67  Ind.  354;  Green 
•0.  State.  SS  Tenn.  614;  State  t.  Craw- 
ford, 99  Mo.  74,  12  S.  W.  Rep.  354. 

4  Evans  v.  State,  7  Ind.  271;  State  v. 
Palmer,  40  Kansas,  474,  20   Pac.  Rep. 


270 
5 


Chicago,  etc.,  Co.  "•.  Aldrich,  134  111. 
9,  24  N.  E.  Rep.  763;  United  States  :•. 
Groesbeck,  4  Utah,  4S7,  11  Pac.  Rep. 
542;  United  States  r.  Bromley.  4  Utah. 
49S.  11  Pac.  Rep.  619;  State  :\  Brecht, 
41  Minn.  50.  42  X.  W.  Rep.  602. 

6  Clarke  z  State.  S;  Ala.  71.  6  So. 
Rep.  378;  Citv  of  Goshen  v.  England, 
1 19  Ind.  368,  21   -V  K.  Re; 


(580  ERROR  IN  JUDICIAL  PROCEEDINGS. 

turned  a  true  verdict  according  to  the  law  and  the  evidence. 
The  general  doctrine  is  declared  and  enforced  in  the  many 
scores  of  cases  which  hold  that  it  will  be  assumed  that  the 
verdict  is  supported  by  the  evidence  and  that  the  jury  properly 
decided  the  controversy  in  cases  where  the  evidence  is  conflict- 
ing. It  will  be  presumed  that  the  instructions  of  the  court  were 
understood  and  obeyed.1  The  presumption  is  that  the  verdict 
was  duly  returned  in  open  court.2  In  short,  all  reasonable 
intendments  will  be  made  in  order  to  support  the  verdict  where 
the  record  contains  nothing  sufficient  to  justify  its  overthrow,  and 
this  doctrine  is  nothing  more  than  a  reasonable  application  of 
the  general  rule  that  a  breach  of  a  sworn  duty  must  be  clearly 
shown.3 

§  725.  Miscellaneous  Instances — It  is  almost  impossible  to  group 
and  classify  the  particular  presumptions  recognized  and  ap- 
plied in  appellate  procedure.  They  assume  various  forms  and 
embrace  a  multitude  of  particular  instances.  We  have  not  at- 
tempted to  give  a  great  number  of  the  particular  presumptions, 
but  have  selected  some  of  the  important  ones  which  we  outline 
in  the  pages  that  follow.  Where  the  evidence  is  not  in  the 
record  it  will  be  presumed,  even  as  against  the  successful  party, 
that  the  costs  were  properly  taxed  against  him.4  A  case  taken 
up  out  of  its  order  is  presumed  to  have  been  rightly  taken  up 
and  tried.5  When  a  case  goes  from  one  court  to  another  the 
presumption  is  that  the  case  properly  reached  the  court  which 
rendered  judgment.6  If  parties  appear  in  the  court  where  the 
case  was  begun  and  there  try  the  case,  it  will  be  presumed  that 
a  change  of  venue  previously  ordered  was  waived.7  Where 
the  record  shows  the  presence  of  the  accused  at  the  opening  of 

1  Browning  v.  Hight,  7S  Ind.  257.  *  Dehority    v.  Nelson,    56    Ind.    414; 

1  Mattson  v.  Borgeson,  24  111.  App.  79.  Jamicson  v.  Board,  56  Ind.  466. 

3  Threishel  v-   McGill,   2S    111.    App.  5  Bradley    v.    Bradley,    45     Ind.    67; 

7S;  Cheatham  v.  State,  67   Miss.  335,  7  French  v.  Howard,  14  Ind.  455. 

So.   Rep.    204;  Floege  v.  Wiedner,  77  6  O'Brien   v.   State,    125    Ind.  38,   41, 

Texas,  311,  14  S.  W.  Rep.  132;    Hicks  citing    Leslie   v.    State,   S3    Ind.    180; 

v.  Ellis,  65  Mo.  176;  People  v-  Williams,  Duncan  v.  State,  84  Ind.  204;     App  v. 

24  Cal.  31;    Mathisz>.  State,  18  Ga.  343;  State,  90  Ind.  73;     Bright  v.   State,  90 

State  v.  Dumphey,  4    Minn.  438;   State  Ind.  543;  Mannix  v.  State,  115  Ind.  245. 

r.  Ayer,  23  N.  II.  301.  '  Doty  v.  State,  6  Blackf.  529;   Frosh 

v.  Holmes,  S  Texas,  29. 


PRESUMPTIONS. 

the  trial  it  has  heen  held  that  it  will  be  presumed  that  he  was 
present  throughout  the  entire  proceedings.1  A  judgment  is 
presumed  to  have  been  pronounced  in  open  court.2  A  modiii- 
cation  of  a  judgment  or  decree  will  be  presumed  to  have  been 
rightfully  made  and  at  the  proper  time.'5  That  a  judgment  on 
default  was  entered  in  open  session  and  due  form  will  be  pre- 
sumed.4 Where  the  law  requires  the  approval  of  a  bond  be- 
fore further  proceedings  are  taken,  the  presumption  is  that  the 
bond  was  approved  before  the  proceedings  were  taken/'  Where 
the  law  requires  instructions  to  be  in  writing  it  will  be  assumed 
that  they  were  written.0  A  motion  to  set  aside  service  of  pro- 
cess is  presumed  to  have  been  properly  sustained.7  Where  a 
dismissal  was  entered  but  judgment  upon  default  was  subse- 
quently rendered,  the  presumption  is  that  the  order  of  dismissal 
was  vacated  and  the  case  reinstated.8  Open  and  close  of  the 
argument  is  presumed  to  have  been  properly  directed  by  the 
trial  court.9  Where  the  record  shows  admissions  of  parties  but 
does  not  show  what  they  were,  it  may  be  presumed  that  they 
sustain  the  judgment.10  In  illustration  of  the  general  doctrine 
that  judgments  will  be  deemed  properly  supported  may  be 
cited  the  cases  holding  that  consent  to  refer  will  be  deemed 
given   as  the  law  requires,11   and  where  specific  findings   are 


1  Ante,  §  291;  Welsh  v.  State,  126  Jacobs  v.  Morrow,  21  Neb.  233,31  N. 
Ind.  71;    People  v.  Sing  Lum,  61   Cal.  W.  Rep.  7^9. 

538;     Carper?.  State.  27   Ohio   St.  572;  6  People  ?.  Garcia,  25  Cal.  531. 

Bond  v.  State,  23  Ohio  St.  349;  Bartlett  7  Stephens  v.  Bradley,  24   Fla.  201.  3 

v.  State,  2S  Ohio  St.  669;    Contra.  liar-  So.  Rep.  415.     See  Herd  v.  Cist  (K)  .), 

ris  v.  People,  130  "111.  457,  22  N.E.Rep.  12  S.  W.  Rep.  (.66. 

S26.  8  Bloomfield  Ry.  Co.  ©.  Burress,   ^2 

2  Christian  v.  Lebeschultz,  iS  So.  Car.  Ind.  S3. 

602.     See  Woody  v.  Dean,  24  So.  Car.  9  Loudemback  v.  Lowrv.  4  Ohio  Cir. 

499;  Reed  v.  Higgins,  86  Ind.  143.  65;  Dille  v.  Lovell,  37   Ohio   St.  415; 

5  Sumner  v.  Cook,  12  Kan.  102.     See  Louisville,  etc.,   Co.  v.    Hubbard,    it" 
Vincent  v..  Evans,  1    Metcf.  (Ky.)  217;  Ind.  [93,  [8  N.E.Rep.  611. 
Commonwealth    v.    Brown,   12;   Mass.  l0  Rencher  v.  Anderson,  95  N.  C.  208. 
410.  "  Boogher  v.  Insurance  Co.,  103  1 

*  Bunker*.  Rand,  ig  Wi§.  254,  90.  See  Morisej  ;.  Swinson,  i<>(   N    C. 

6  Cromelien  v.  Brink,  2>>  l'a.  St.  522.  555;  Cooker-  Williamson,  11  Ind.  2\2. 
See,  generally.  Moody  v.  State.  84  Ind.  Van  Marter  v.  Hotchkiss,  4  Abb.  Dec. 
433;    Sheldon  v.  Wright,  7    Barb.    39;  (N.  Y.)  4S4. 

State    0.    Hinchman,    27    Pa.    St.   470; 


682 


ERROR   IN   JUDICIAL  PROCEEDINGS. 


requisite  they  will  be  presumed  to  have  been  duly  made.1  The 
presumption  is  that  the  trial  court  did  its  duty  in  restraining 
the  argument  of  counsel  and  preventing  misconduct.2  Orders 
granting  or  denying  applications  for  a  continuance,  a  change 
of  venue,  a  new  trial  or  the  like,  are  presumed  to  have  been 
rightfully  made  and  entered.3  The  presumption  is  that  the 
rules  of  the  trial  court  were  rightfully  adopted  and  regularly 
promulgated  and  recorded.4 

Simmons,  40  Ind.  442;  La  Follette  v- 
Higgins,  109  Ind.  241;  Mackison  v. 
Clegg,  95  Ind.  373;  Mathews  v.  Droud, 
114  Ind.  26S;  Beach  v.  Zimmerman,  106 
Ind.  495;  Shields  a.  McMahan,  101  Ind. 
591,  595;  Peck  v.  Board.  87  Ind.  221; 
Foster  v.  Ward,  75  Ind.  594;  Kernodle 
v.  Gilson,  1 14  Ind.  451;  Stewarts.  State, 
in  Ind.  5^4;  Whislerc.  Lawrence,  112 
Ind.  229;  Talcott  v.  Johnson,  41  Ind. 
201.  See,  generally,  Schwab  v.  Coots, 
48  Mich.  116;  Hurd  v.  Newton,  36 
Mich.  35;  Finn  v.  Corbitt,  36  Mich. 
318;  Fewlass  v.  Abbott,  2S  Mich.  270. 
*  Illinois,  etc.,  Co.  v.  Haskins,  115 
111.  300. 


1  Campbell  v.  Coburn,  77  Cal.  36; 
Campbell  v.  Have-,  77  Cal.  36,  iS  Pac. 
Rep.  860;  Gordon  v.  Donahue,  79  Cal. 
501.  See,  for  application  of  the  general 
doctrine  to  notices,  Gage  v.  Downey,  79 
Cal.  140,  19  Pac.  Rep.  113;  Dominguez 
v.  Mascotti,  74  Cal.  269,  15  Pac.  Rep. 
773;  Chestnutt  v.  Pollard.  77  Texas,  86, 
13  S.  W.  Rep.  S52;  Platte.  Continental 
Ins.  Co..  62  Vt.  166,  19  Atl.  Rep.  637. 

2  Missouri,  etc.,  Co.  v.  Lamothe,  76 
Texas.  219,  13  S.  W.   Rep.  194. 

3  McGarvey  v.  Ford  (N.  M.),  27  Pac. 
Rep.  415;  Robbins  v.  Neal,  10  Iowa, 
560;  Ramsey  v.  Bush,  27  Iowa,  17; 
Willett  v.  Porter,  42  Ind.  250;  Baker  v. 


CHAPTER   IX. 


REQUESTS    AND  OFFERS. 


726.  No  ruling  or  no  request,  no  error. 

727.  Refusal  to  rule. 

728.  Implied  requests. 

729.  Time  tor  making  request. 

730.  A  party  basing  a  right  on  a  re- 

quest must  himself  make  it. 

731.  Request  must   be   affirmatively 

shown. 

732.  Request  for  a  special  finding. 

733.  Request  for  writ  ten  instructions. 

734.  Request  for  an  inspection  of  the 

instructions  of  the  court. 

735.  Requesting  special  instructions. 

736.  Requests  where  instructions  are 

correct  as  far  as  they  go. 

737.  Request  for  the  submission   of 

interrogatories  to  the  jury. 
73S.    Request  for  a  special  verdict. 


§  739.    The  practice  in  requesting  spe- 
cial verdicts. 

740.  Request  for  inspection  and  pro- 

duction of  documents. 

741.  When  notice  to  produce  not  re- 

quired. 
Offers — General  doctrine. 
Offers  of  oral  testimony. 
Showing  materiality  and  rele- 
vancy. 
745.    Effect    of   mingling    competent 
with  incompetent  evidence. 
Offer  unaccompanied  by  inter- 
rogatory unavailing. 
Offer  not  required  on  cross-ex- 
amination. 
74S.    Offer  of  documentary  evidence. 
749.    Repeating  offers. 


742. 

743- 

744- 


746. 


747 


§  726.  No  Ruling  or  no  Request,  no  Error — It  is  in  general  true 
that  errors  are  founded  upon  rulings  or  decisions  actually  made 
by  the  trial  court,  but  there  may  be  error  in  refusing  to  rule 
where  a  request  for  a  ruling  is  appropriately  and  seasonably 
made.  It  is  safe  to  say  that  the  general  rule,  and  one  of  very 
comprehensive  scope,  is  that  where  there  is  no  ruling,  or  no 
sufficient  request  to  rule,  there   is  no  available  error.1     There 


1  Highfill  v.  Monk,8i  Ind.  203;  Wash- 
er v.  Allensville,  etc.,  Co.,  81  Ind.  7S; 
Doe  v.  McDonald,  4  Ind.  615;  Priddy 
v.  Dodd,  4  Ind.  S4;  Coleman  v.  Dob- 
bins, S  Ind.  156,  163;  Brownleev.  Hare, 
64  Ind.  311,  317;  Noon  v.  Lanahan,  55 
Ind.  262;  Meredith  0.  Lackey,  14  Ind. 
529;  White  v.  Gregory,  126  Ind.  95; 
Richardson  v.  St.  Joseph,  etc.,  Co.,  5 
Blackf.    146;     Clark    v.    Donaldson,    49 


How.  Pr.  63;  Haze  well  p.  Coursen,  Si 
N.  Y.  630,  637;  Tyson  v.  Tyson,  100  N. 
C.  360,  368;  Scroggs  v.  Stevenson,  100 

N.  C.  354.  Motions  calling  for  a  rul- 
ing must  be  presented  to  the  court. 
Gilbert  ©.  Hall,  115  Ind.  549.  iS  N.  E. 
Rep.  2S.  Motions  in  course  tiled  prop- 
erly, or  duly  docketed,  must  be  taken 
notice  of  by  the  parties  in  court.  Bent 
v.  Maupin,  86  K.v.  271,  5  S.W.  Rep.  425. 


(683) 


(584  ERROR  IN  JUDICIAL  PROCEEDINGS. 

are  exceptions  to  this  rule  but  they  are  few.  One  exception  is 
that  a  question  affecting  the  jurisdiction  of  the  subject  may  be 
interposed  at  any  time,  another  is  that  a  complaint,  or  an  in- 
dictment, may  be  assailed  for  the  first  time  on  appeal. 

§  727.  Refusal  to  Rule — In  cases  where  a  party  has  a  right  to 
a  ruling,  and  prefers  in  due  season  and  in  an  appropriate  mode, 
a  request  for  a  designated  ruling  it  is  error  to  neglect  or  refuse 
to  rule,  provided  of  course,  the  ruling,  is  asked  upon  a  material 
and  proper  matter.  But  where  the  power  invoked  is  a  discre- 
tionary one  the  refusal  to  rule  is  not  always  error,  indeed,  as  is 
elsewhere  shown,  error  can  be  seldom  successfully  assigned 
upon  a  ruling,  or  upon  a  refusal  to  rule,  where  the  court  exer- 
cises a  purely  discretionary  power  and  the  duty  to  decide  or 
the  character  of  the  decision  is  mere  matter  of  discretion.  It  is 
obvious  that  if  a  trial  court  could  pass  over  motions  or  requests 
duly  filed  or  preferred  without  a  ruling  there  would  be  danger 
of  great  injustice  to  parties  not  in  fault.  Where  parties  do  all 
that  it  is  incumbent  upon  them  to  do  it  would  be  a  reproach  to 
the  law  if  silence  or  inaction  on  the  part  of  the  court  should  be 
permitted  to  prevent  a  review  of  the  proceedings  of  the  court.1 
If  the  duty  which  the  party  requests  the  judge  to  perform  is  of 
a  mandatory  nature  and  the  duty  is  exclusively  devolved  upon 
the  judge  it  is  error  for  him  to  refuse  performance  upon  the 
ground  that  the  party  has  failed  to  do  an  act  remotely  con- 
nected with  the  duty,  but  it  is  otherwise  where  the  party  fails  in 
any  respect  to  do  what  the  law  requires  of  him.2 

1  In  Corning  b.  Woodin,  46  Mich.  44,  press    rulings    on    objections   properly 

the  court  held  that  silence  was  equiva-  made  against  them.     Were  it  otherwise 

lent  to  a  refusal.     It  was  there  said,  in  it  would   he  in  his  power  to  stifle  the 

speaking  of  the  refusal  of  the  judge  to  right  to  a  revision  in  many  cases." 
rule:     "  But  the  objection  taken  was  an         2  Wells  v.  McGeoch,  71  Wis.  196,  221, 

explicit  call  upon  him  to  do  so,  and  his  35  N.  W.  Rep.  769.    "The  presumption 

omission  to  state  any  opinion  can  not  of  regularity  in  the  proceedings  of  the 

be   set  up  as   a  bar  against  revision  of  trial    court    requires    the    complaining 

the   proceedings.     Injurious  irregulari-  party  to  show  affirmatively  that  he  was 

ties  at  the  trial  court  can   not  be  pro-  denied  some  right."     Craig  v.  Frazier, 

tected    against  review    in  an  appellate  127  Ind.  286,  2S8. 
court  by  the  judge's  refusal  to  make  ex- 


REQ]    ES  rS   A.ND    (  >FFERS. 

§  728.  Implied  Requests — It  is  not  always  necessary  that  the 
request  for  a  ruling  should  be  an  express  one.  In  every  in- 
stance there  is  an  implied  request  to  rule  or  decide  where  a 
proper  motion,  demurrer  or  pleading  is  filed  tendering  an  issue 
of  law,  so  it  is,  indeed,  in  many  cases  where  issues  of  fact  or 
of  law  are  presented  on  objections  made  in  the  course  of  a  trial. 
But  under  our  practice  it  is  necessary  to  do  more  than  simply 
present  a  request  by  implication,  for  a  ruling  must  be  insisted 
upon  and  an  exception  reserved,  upon  the  failure  or  refusal  to 
rule.1 

§  729.  Time  for  Making  Request — Where  the  statute  fixes  the 
time  within  which  a  request  shall  be  made  it  will  generally  be 
futile  unless  made  within  that  time.  If  no  time  is  fixed  by  law 
or  by  the  rules  of  practice  within  which  the  request  shall  be 
made,  then  it  must  be  made  within  a  reasonable  time,  before 
action  is  required  upon  it.  The  trial  court  should  be  allowed 
a  reasonable  time  and  opportunity  to  consider  and  decide  upon 
the  questions  involved,  and  to  do  what  the  request  requires 
should  be  done.2 

§  730.   A  party  Basing  a  Right  on  a  Request  must  himself  make 

it — Where  a  specific  request  is  essential  to  the  existence  of  a 
right  the  part}-  who  attempts  to  make  the  request  available  in 
cases  where  it  is  denied,  is  bound  to  show  that  the  request  was 
his.  This  general  rule  precludes  a  party,  where  a  refusal  or 
denial  is  the  basis  of  a  claim  of  error,  from  availing  himself 
of  a  request  which  came  from  his  adversary.  His  own  request 
is,  in  general,  the  only  foundation  upon  which  he  can  safely 
and  securely  build.  Thus,  a  party  can  not  avail  himself  of 
his  adversary's  request  for  a  special  finding  in  a  case  where 
the  request  is  denied.3  So,  a  party  who  desires  written  instruc- 
tions should  himself  ask  them,  for  he  can  not  always  rely  upon 
the  request  of  his  adversary.     But  the  rule  does  not  fully  or 

1  White  v.  Gregory,  126  Ind.  95,  98;  that  the  request  for  a  special  finding 
Coleman  v.  Slate.  111  Ind.  563;  Grubb  must,  to  be  seasonable,  be  made  at  the 
v.  State,  117  End.  277,  commencement  of  the  trial. 

2  Moore  v.  Harnett.    17  Ind.  349.     In  5  Bingham  v.  Stage.  123  Ind.  281. 
Hartlep  v.  Cole,  120  Ind.  247,  it  is  held 


886  ERROR  IN  JUDICIAL  PROCEEDINGS. 

necessarily  apply  where  the  request  has  been  acted  upon  by 
the  court.  Thus,  where  special  interrogatories  are  submitted 
to  a  jurv  upon  the  request  of  one  of  the  parties  they  can  not, 
as  a  general  rule,  be  withdrawn  over  the  objection  of  the  other.1 
It  is  clear  that  there  is  an  essential  difference  between  a  case 
where  there  is  affirmative  action  upon  a  request  and  a  case 
where  the  request  is  denied,  for,  if  action  is  taken  the  clear 
implication  is  that  any  other  request  would  be  fruitless  and  idle. 
Not  only  this,  but  more,  for  in  the  case  of  affirmative  action 
the  party  has  a  right  to  assume  that  what  has  been  asked  will 
be  done,  and  it  might  work  great  injustice  to  him  if  the  court 
should  change  its  decision,  as,  for  instance,  in  a  case  where 
the  court  has  announced  that  a  special  verdict  will  be  directed. 
But  even  the  general  rule  that  where  there  is  a  refusal  the  one 
party  can  not  take  advantage  of  the  request  of  the  other  has 
its  limitations  and  exceptions.  If  the  party  not  making  the  re- 
quest should  show  that  he  was  diligent,  free  from  fault  and  that 
he  was  wrongfully  misled  to  his  prejudice  he  would  not  be 
turned  away  entirely  remediless. 

§  731.  Request  must  be  Affirmatively  Shown — Where  a  special 
request  is  a  condition  precedent  to  the  right  to  demand  a  rul- 
ing it  must  appear  by  the  record  to  have  been  made  in  due 
season  and  in  the  appropriate  mode.  A  party  can  not  success- 
fully complain  of  a  ruling  unless  the  record  regularly  shows 
that  he  did  all  that  the  law  required  him  to  do  in  order  to  make 
it  the  duty  of  the  court  to  give  the  particular  decision.  If  the 
party  has  been  in  fault  in  this  respect  he  will  not  be  aided  on 
appeal.2 

1  Summers    v .    Greathouse,   S7    Ind.  Ind.  360.     Nor  do  they  govern   where 

205;  Duesterberg  v.  State,  116  Ind.  144;  the  interrogatories  are  not  material  or 

Peters  v.  Lane,  55    Ind.  391;   Wood  v.  relevant.     Groscup  v.  Rainier,  in  Ind. 

Ostram,  29  Ind.  177;    Noakes  v .  Morey,  361;     Myers   v.   Murphy,  60   Ind.   282; 

30  Ind.    103;   Otter  Creek,  etc.,  Co.  v.  Foster  v.  Ward,  75  Ind.  594;    Frank  v. 

Raney,  34  Ind.  329;  Maxwell  v.  Boyne,  Grimes,  105 Ind. 346;  Continental,  etc., 

36  Ind.  120;  Pitzer  v.  Indianapolis  Co.,  Co.  v-  Yung,  113  Ind.   159.     See   Por- 

So  Ind.  509.     But  these  decisions  do  not  ter  v.  Waltz,  108  Ind.  40;    Schreiber  v. 

govern  equity  cases  since  the  submission  Butler,  S4  Ind.  576. 

of  questions  in  such  e;i-es  is  merely  tor  '  In  the   case  of  Puett  v.  Beard,  86 

the  purpose  of  obtaining  advice  as  to  Ind.    [04,    107,   the   court    said:     "One 

matters  of  fact.     Platter  v.  Board,  103  complaining  of  a  ruling  must,  in  order 


REQUESTS  AND   OFFERS. 


§  732.  Request  for  Special  Finding — An  express  request  is  nec- 
essary in  order  to  secure  a  special  finding.1  A  request  will  not 
be  implied,  and  a  finding  in  the  record  which  does  not  affirma- 
tively appear  to  have  been  made  upon  request  will  be  deemed  a 
general  finding.2  The  request  must  be  made  at  the  commence- 
ment of  the  trial  in  order  to  render  it  the  compulsory  duty  of 
the  court  to  find  the  facts  specially.3  It  is,  however,  discretion- 
ary with  the  court  to  make  a  finding  upon  a  request  made  at  a 
later  stage,4  but  as  it  is  discretionary  no  error  can,  as  a  general 
rule,  be  successfully  assigned  upon  the  refusal  to  make  such  a 
finding.  We  suppose,  however,  that  if  a  diligent  party  free 
from  fault  is  misled,  a  request  at  a  later  stage  of  the  proceed- 
ings would  be  regarded  as  effective.  To  entitle  such  a  request 
to  full  force,  it  would  undoubtedly  be  necessary  to  make  a  very 
strong  and  clear  case.  If  the  court  elects  to  act  upon  the  re- 
quest and  does  make  a  special  finding,  the  adverse  party's 
complaint  will  not  be  heeded.5  A  specific  and  direct  request 
to  make  a  special  finding  and  state  conclusions  of  law  is  suf- 
ficient. It  is  not  necessary  to  add  to  the  request  the  statement 
that  the  finding  is  asked  with  a  view  to  except  to  the  conclu- 
sions of  law.6  It  is  no  more  necessary  to  state  why  a  special 
finding  is  asked  than  it  is  to  accompany  a  request  for  written 


to  secure  a  reversal,  affirmatively  show 
that  he  placed  himself  in  an  attitude  to 
rightfully  ask  that  which  the  court  re- 
fused him.  If  this  he  not  done  the  pre- 
sumption of  regularity  which  always 
attends  the  proceedings  of  the  trial 
court  in  the  absence  of  a  contrary  show- 
ing will  require  the  appellate  court  to 
assume  that  the  party  did  not  do  that 
which  the  law  required  him  to  do  in 
order  to  entitle  him  to  the  ruling  asked." 
1  Nash  v.  Caywood,  39  Ind.  457; 
Montgomery,  etc.,  Co.  V.  Rock,  |i  Ind. 
263;  Hasselman  :■.  Allen,  42  Ind.  257; 
Rose  :■.  Duncan.  43  Ind.  512;  Board  v. 
Reynolds,  44  Ind.  509;  Weston  :•. 
Johnson,  48  Ind.  1;  Shane  V.  Lowry.  48 
Ind.  171;  Smith  ;•.  Tatman.  71  Ind. 
394;  Grover,  etc.,  Co.  v.  Barnes,  49  Ind. 
136;   Rennick  v.  Chandler.  59  Ind.  354; 


Northcutt  :•.  Buckles,  60  Ind.  577;  Con- 
ner v.  Town  of  Marion,  112  Ind.  517; 
McClellan  v.  Bond.  92  Ind.  424;  Zel- 
ler  v.  City  of  Crawfordsville,  90  Ind. 
262;    Martin  :•.  Martin.  74  Ind.  2117. 

2  Lawson  v.  Hilgenberg,  77  Ind.  221; 
Towers  v.  Fletcher,  $4  Ind.  154;  Bake 
V.  Smiley,  S4  Ind.  212;  Downey  :•. 
State.  77  Ind.  87;  Wallace  v.  Kirtle, 
Ind.  485;  Steel  v.  Grigsby,  79  Ind.  1S4; 
Conner  V.  Town  o\  Marion,  112  Ind. 
517;  Barkley  :•.  Tapp,  87  Ind,  25. 

3  Hartlep  :•.  Cole,  120  Ind.  247;  Miller 
•     Lively,  1    Ind.  App.  <■.  27  N.  L\  Rep. 

437- 

4  Kopelke  v.  Kopelke,  112  Ind.  435. 

5  Kopelke  V.  Kopelke.  112  Ind.  435. 

6  Western  Union  Tel.  Co.  :•.  Tinsal, 
9S  Ind.  566;  Trentman  :  .  Eldridge,  9S 
Ind.  ?2c. 


Qgg  ERROR    IN  JUDICIAL   PROCEEDINGS. 

instructions  with  a  statement  of  the  object  of  the  request,  or  to 
accompany  a  request  for  the  submission  of  special  interroga- 
tories to  a  jury  with  a  similar  statement,  for,  in  all  such  cases, 
the  object  of  making  the  request  is  impliedly  disclosed  in  the 
request  itself.  The  request  is  the  essential  and  indispensable 
requisite  and  if  it  is  definitely  and  appropriately  made  all  is  done 
that  the  law  requires.  The  request  for  a  special  finding  must  be 
in  the  record  in  some  appropriate  form,1  but  it  is  sufficient  if  it 
is  in  the  finding  signed  and  filed  by  the  judge.2  The  finding, 
when  signed  by  the  judge,  is  part  of  the  record,3  and  there  is  no 
reason  why  the  request  may  not  be  shown  by  a  recital  in  the 
finding.  It  is  difficult  to  conceive  where  it  could  be  more  ap- 
propriately shown  than  in  the  special  finding  it  called  forth. 
Where  a  special  finding  is  actually  made,  signed  and  filed,  and 
it  recites  that  a  request  was  made,  the  presumption  is  that  the 
request  was  appropriately  and  seasonably  preferred.4  If  the 
party  who  requests  a  special  finding  is  denied  one,  it  is  incum- 
bent upon  him  to  show  that  he  made  a  specific  request,  and 
made  it  in  due  season.  Upon  him  rests  the  burden  of  over- 
coming the  presumption  that  the  trial  court  did  not  err.  He 
must  take  such  steps  as  entitle  him  to  the  special  finding  and 
he  must  see  to  it  that  the  record  is  so  prepared  as  to  show  that 
he  did  all  that  it  was  incumbent  upon  him  to  do,  and  that  he 
did  it  in  the  appropriate  mode  and  within  a  reasonable  time. 

§  733.  Request  for  Written  Instructions — The  proper  course  for 
a  party  who  desires  that  the  jury  shall  be  instructed  in  writing 
is  to  submit  a  written  request5  asking  that  the  instructions  be 
given  in  writing.     Where  a  request  for  written  instructions  is 

1  Smith  v.  Uhler,  99  Ind.  140.  25  Ind.  376;  Comvell  v.  Clifford,  45  Ind. 

2  Bodkin  v.  Merit,  102  Ind.  293.  392;    Roberts   v.    Smith,  34   Ind.  550; 

3  State  v.  St.  Paul,  etc.,  Co.,  92  Ind.  McClcllan  v.  Bond,  92  Ind.  424. 
42;  Button  v.  Ferguson,  11  Ind.  314;  4  Clark  v.  Deutsch,  101  Ind.  491. 
Peoria,  etc.,  Co.  v.  Walser,  22  Ind.  73,  5  The  safe  practice  and  the  better 
87.  But  it  is  indispensably  necessary  practice,  is  to  put  such  requests  in  writ- 
that  the  finding  should  be  signed  by  the  ing,  but  it  is  impliedly  held  in  Gray  v. 
judge;  it  will  not  avail  unless  signed,  Stivers,  38  Ind.  197,  that  a  verbal  rc- 
although  copied  at  full  length  in  the  quest  is  sufficient.  The  case  cited  is 
order  book.  Smith  v.  Davidson,  45  not  easily  harmonized  with  Nickless  V. 
Ind.  396.     See,  also,  Smith  v.  Jeffries,  Pearson,  126  Ind.  477,  484. 


REQUESTS  AND   OFFERS. 


Os!, 


opportunely  and  seasonably  submitted  it  is  the  duty  of  the  court 
to  give  all  of  its  instructions  in  writing  and  it  is  error  to  g 
any  oral  instruction.1  The  request  must  be  made  before  the 
argument  begins.2  A  mere  general  direction  to  the  jury  not 
embodying  any  proposition  of  law  but  simply  indicating  a  mat- 
ter of  general  duty  is  not  within  the  rule  forbidding  oral  mod- 
ifications, for  such  a  direction  is  not  regarded  as  an  instruction.3 
The  request  of  the  adverse  party  can  not  be  made  available  by 
the  appellant.4 

§  734.   Request  for  an  Inspection  of  the  Instructions  of  the  Court — 

If  counsel  desire  to  inspect  instructions  which  the  court  of  its 
own  motion  proposes  to  give  to  the  jury  they  should  request 
the  court  to  "  lay  before  them  "  such  instructions.5     The  statute 


1  The  statute  is  mandatory  and  can 
not  be  disregarded.  Hopt  v.  United 
States,  104  U.  S.  631,  635.  In  the  case 
cited  it  was  held  that  to  read  from  a 
book  was  error.  Our  decisions  are  to 
the  same  effect.  Stephenson  v.  State, 
no  Ind.  358;  Townsend  v.  Chapin,  8 
Blackf.  32S;  Meredith  v.  Crawford,  34 
Ind.  399;  Kenworthv  v.  Williams,  5 
I'K'-  375;  Bottorff  v.  Shelton,  79  Ind. 
9S;  Sutherland  V.  Venard,  34  Ind.  390; 
Hardin  v.  Helton,  50  Ind.  319;  Bos- 
worth  v.  Barker,  65  Ind.  595.  The  rule 
is  strictly  enforced,  and  with  reason, 
since  the  objeel  is  to  prevent  any 
changes,  substitutions,  or  modifications 
thai  can  not  be  fully  exhibited  in  the 
record,  and  that  without  resorting  to  the 
memory  of  the  judge  or  counsel.  Pro- 
vines  v.  Ileaston,  67  Ind. 482;  Smurri'. 
State,  SS  Ind.  504;  Bradway  v.  \\ 'ad- 
dell,  95  Ind.  170;  Widner  v.  State,  28 
Ind.  394;  Toledo,  etc.,  Co.  v.  Daniels. 
21  Ind.  256;  Rising  Sun,  etc.,  Co.  v. 
Conway.  7  End.  [87;  Laselle  r/.Wells,  17 
Ind.  33;  Riley  v.  Watson,  is  [nd.  291; 
Strattan  v,  Paul,  to  Iowa,  139;  Head 
v.  Langworthy,  [5  Iowa.  235. 

2  Chance  v.  Indianapolis,  etc.,  Co.,  32 
Ind.    472;     Patterson     :•.    Indianapolis, 

44 


etc.,  Co.,  56  Ind.  20;  Craig  v.  Frazier, 
127  Ind.  2S6;  Puett  v.  Beard,  86  Ind. 
104;  Malady  v.  McEnary,  30  Ind.  273; 
Ollam  v.  Shaw,  27  Ind.  388;  Welsh  v. 
State,  126  Ind.  71,  78. 

3  Lehman  v.  Hawks.  121  Ind.  541; 
Bradway  v.Waddell,  95  Ind.  170;  Dodd 
v.  Moore,  91  Ind.  522;  Lawler  v.  Mc- 
Pheeters,  73  Ind.  577;  Stanley  V.  Suth- 
erland, 54  Ind.  339;  McCallister  v. 
Mount,  73  Ind.  559;  Trentman  v. Wiley, 
85  Ind.  ^:  Hasbrouck  v.  City  of  Mil- 
waukee, 21  Wis.  219,  240;  Patterson  v. 
Ball,  19  Wis.  243. 

4  Jaqua  v.  Cordesman,  etc.,  Co.,  106 
Ind.  141;  Columbus,  etc.,  Co.  v.  Powell, 
40  Ind.  37,  -|2.  This  general  rule  is  sub- 
ject to  exceptions,  for  if  the  court  should 
indicate,  clearly  ami  decisively,  that  it 
would  give  written  instructions,  we 
suppose  that  it  could  not  withdraw  its 
declarations  so  as  to  wrongfully  mis- 
lead a  party. 

5  R.  S.  1881,  ss  534-  Under  the  provis- 
ions of  s^  534  counsel  ina\  read  instruc- 
tions which  the  court  indicates  it  will 
give  to  the  jury  and  apply  them  to  the 
tacts,  hut  counsel  will  not  he  permitted 
to  dispute  the  rules  of  law  therein  de- 
clared.   Scott  ;  .  Scott.  124  Ind.  66.  The 


690  ERROR  IN  JUDICIAL  PROCEEDINGS. 

does  not  declare  that  the  request  or  application  shall  be  in  writ- 
ing, but  good  practice  so  requires.  The  only  safe  rule  is  to 
require  all  such  applications  or  requests  to  be  in  writing,  and 
by  many  courts  it  is  held  that  mere  oral  requests  are  insulli- 
cient.1 

§  735.  Requesting  Special  Instructions — The  safe  rule  is  to  pre- 
pare and  deliver  to  the  court  before  the  argument  begins  in- 
structions covering  the  material  points  of  the  case.  As  in  the 
case  of  a  request  to  instruct  in  writing  the  request  must  be  made 
before  the  beginning  of  the  argument  and  the  instructions  which 
the  party  desires  given  should  then  be  submitted  to  the  court.2 
The  request  should  be  special,  that  is,  instructions  should  be 
presented  to  the  court  covering  the  points  upon  which  the  party 
desires  that  the  jury  should  be  fully  and  specifically  instructed, 
for  the  failure  to  instruct  upon  a  particular  point  is  not  error 
unless  the  attention  of  the  court  is  opportunely  and  appropri- 
ately directed  to  that  point.3  This  is  true,  although  it  is  the 
duty  of  the  court  to  give  general  instructions.  It  is  important 
that  the  instructions  which  the  court  is  requested  to  give  to  the 
jury  should  be  accurately  worded  and  the  law  fully  and  prop- 
erly expressed,  for  while  the  court  may,  if  it  deems  proper, 
correct  or  modify  an  instruction,  it  is  not  bound  to  do  so,  but 
may,  without  error,  refuse  an  instruction  expressed  in  improper 


record     must     show    what    comments  216;   Pittsburgh,  etc.,   Co.  v.   Noel,  77 

counsel  proposed  to  make  or  no  ques-  Ind.    no;    Carver   v.    Carver,  97   Ind. 

tion  is  presented.     Blizzard  v.  Apple-  497;   White    v.    Behm,    So    Ind.    239; 

gate.  77  Ind.  516,  527.  Simpkins  v.  Smith,  94  Ind.  470;   Krack 

1  People  v.  Miller,  4  Utah,  410,  11  v.  Wolf,  39  Ind.  88;  Foxwell  v.  State, 
Pac.  Rep.  514.  63  Ind.  539,  541;  Adams  v.  State,  65  Ind. 

2  Newton  v.  Newton,  12  Ind.  527;  565;  Shaw  v.  New  York,  etc.,  Co.,  150 
Ollam  v.  Shaw,  27  Ind.  38S;  liege  v.  Mass.  1S2,  22  N.  E  Rep.  884;  Dow  v. 
Newson,  96  Ind.  426;  Terry  v.  Shivery,  Merrill,  65  N.  H.  248,  18  Atl.  Rep.  317; 
93  Ind.  413;  Evansville,  etc.,  Co.  v.  Peterson  v.  Toner,  80  Mich.  350,  45  N. 
Crist,  116  Ind.  446;  Noblesville,  etc.,  W.  Rep.  346;  Drey  f.  Doyle,  99  Mo.  459; 
Co.  v.  Vestal,  118  Ind.  So.  Silberberg  v.  Pearson,  75  Texas,  287,  12 

3  Marshall  v.  State,  123  Ind.  128,  132;  S.  W.  Rep.  850;  Marsh  v.  Richardson, 
Burgett  v.  Burgett,  43  Ind.  78;  Rollins  106  N.  C.  539,  11  S.  E.  Rep.  522;  State 
v.  State,  62  Ind.  46;   Sullivan  v.   State,  v.  Bagan,  41  Minn.  2S5. 

52  Ind.  309;  Marks  v.  Jacobs,  76  Ind. 


REljJ    ESTS   AND    (  IFFERS.  691 

terms.1  The  instruction  as  requested  must  be  correct  in  its  en- 
tirety ;  if  there  is  a  material  misdirection  embodied  in  it  the 
court  may  rightfully  refuse  to  give  it  to  the  jury,  for  the  court 
is  not  bound  to  select  and  separate  the  good  from  the  bad.2  The 
rule  that  the  trial  court  is  not  bound  to  dissect  an  instruction 
and  select  the  good  from  the  bad  is  applied  by  some  of  the 
courts  to  a  series  of  instructions,  and  if  one  of  the  series  is  bad 
the  whole  may  be  rejected,  but  our  court  has  not  gone  so  far. 
On  the  contrary,  it  has  tacitly,  at  least,  treated  each  instruction 
in  a  series  as  independent  of  the  others,  so  far  as  concerns  its 
sufficiency  when  refused,  although  in  construing  instructions 
given  the  charge  is  considered  as  an  entirety. 

§  736.   Requests  where  Instructions  are  Correct  as  far  as  they  go 

— If  an  instruction  is  correct  as  far  as  it  goes,  the  fact  that  it 
does  not  go  far  enough  is  not,  as  a  general  rule,  the  basis  of 
available  error.  To  make  the  failure  to  go  the  proper  length 
available  as  error,  the  party  must  make  a  request  for  a  full  and 
complete  instruction  upon  the  particular  point.  It  is,  in  short, 
incumbent  upon  a  party  who  desires  a  specific  and  full  instruc- 
tion upon  a  point  involved  in  the  case  to  request  it  in  due  form 
and  at  the  proper  time.3 

1  Lawrenceburgh,  etc.,  Co.  -•.  Mont-  Ind.  545;  Fuller  v.  Coats,   iS  Ohio  St. 
gomery,  7  Ind.  474;  Roots  v.  Tvner,  10  343,353;  Bryant  v.  Crosby,  40  Me.  9, 
Ind.  87;    Mosier  v.  Stoll,  119  Ind.  244,  19;   Indianapolis,  etc.,  Co.  v.  Horsl 
252;    Goodwin    v.    State,  96  Ind.   550,  U.S. 291, 295;  Harveyf.  Tyler,  2  Wall. 
566;  Rogers  v.    Leyden,    127    Ind.    50,  32S,  33S;   Roberts   v.    State,  83  Ga.  166, 
56;     Dudley    v.   Parker,    55    Hun.    29;  369,  9   S.   E.    Rep.  675;  Blumhardt    v. 
Wilson    v.   Atlanta,  etc.,    Co.,    82    Ga.  Rohr,  70  Md.  32S. 
3S6;  Bevan  v.  Hay  den,   13  Iowa,   122;  8  Murray  v.  State,  26  Ind.  141;  Black  - 
Grimes  v.  Martin,  10  Iowa,  347:  Lucas  eter    v.    House,    67    Ind.   414;  Colee  v. 
v.    Brooks,    iS    Wall.    436;    Over    v.  State.  75   Ind.  511;  Carpenter  v.  S 
Schifning,  102  Ind.  191;  Board  of  Com-  43  Ind.  371;   1                State,  49  Ind 
missioners  v.  Legg,  93   Ind.  523;   M'c-  Moore  v.  Shields,   121    Ind.  267;   Geb- 
Cammon  :\  Cunningham.  108  Ind.  545;  hart  :\  Burkett,  57  Ind.  378;    Harper  :\ 
Hauss  ;■.  Xiblack,  So  Ind.  407;  Penn-  State.  ioi    Ind.   109;   Hatton  :■.  Jones, 
sylvania  Co.  v.  Weddle,  100  Ind.  138.  7S  Ind.  466;  Fitzurorald  v.  Goff,  99  Ind. 
See,  generally,  Sheehan  :•.  People,  131  2S.     The  general  rule  has  been  applied 
111.  22.  22  X.  E.  Rep.  818;   Carpenter  v.  in  a  great  number  ofcases  and  to  que-- 
Stillwell,  11    V   Y.  61,  ;>i,    Hodges   v.  tions  presented   in   almost  every  con- 
Cooper,  43  X.  Y.  216.  ceivable  form.     Hishop  :■.  Redmon 

1  McCammon   v.    Cunningham,    10S  Ind.   157:   Mobley                      ;  Ind,  92; 


ERROR   IN    U'DICIAI.   PROCEEDINGS. 


§  737.   Request  for  the  Submission  of  Interrogatories  to  the  Jury 

— A  party  who  desires  the  court  to  submit  special  interrogato- 
ries to  a  jury  must  expressly  request  that  interrogatories  be  sub- 
mitted. The  request  must  ask  that  answers  be  returned  in  the 
event  that  the  jury  find  a.  general  verdict,  for  it  is  not  error  to 
deny  an  unconditional  request.1  The  request  should  be  pre- 
sented to  the  court  before  the  beginning  of  the  argument,  but 
the  court  may,  if  it  chooses,  receive  the  interrogatories  at  a 
later  stage  of  the  proceedings.2  The  request  must  not  be  lim- 
ited by  a  statement  that  answers  are  required  only  in  the  event 
that  the  general  verdict  is  in  favor  of  a  designated  party,  since 
such  a  limitation  might  tend  to  the  prejudice  of  the  adverse 
party.3  Interrogatories  may,  it  has  been  decided,  be  placed  in 
a  sealed  envelope  and  the  jury  directed  not  to  examine  them 
until  they  have  agreed  upon  a  general  verdict ;  at  all  events, 
it  was  held  that  it  was  not  error  to  pursue  this  course.4     If 


Louisville,  etc.,  Co.  v.  Grantham,  104 
Ind.  ZS?>'i  Astley  v.  Capron,  89  Ind. 
167;  l)u  Souchet  T'.  Dutcher,  113  Ind. 
249;  Conrad  z\  Kinzie,  105  Ind.  281; 
Dyer  v.  Dyer,  S7  Ind.  13;  Ireland  v. 
Emmerson,  93  Ind.  1;  City  of  South 
Ber.d  v.  Hardy,  98  Ind.  577;  Judd  v. 
Martin,  97  Ind.  173;  Klosterman  v.  Ol- 
25  Neb.  3S2,  41  N.  W.  Rep.  250; 
Wimer  :•.  Albaugh  7S  Iowa,  79,42  N. 
W.  Rep.  587;  Dow  v.  Merrill  (N.  II.), 
18  Atl.  Rep.  317;  Parker  v.  Georgia, 
etc.,  Co.,  83  Ga.  539,  10  S.  E.  Rep.  233; 
Brotherton  v.  Weathersby  (Texas),  11 
S.  W.  Rep.  505;  Clapp  v.  Minneapolis, 
etc.,    Co.,  36  Minn.  6,  29  N.   W.  Rep. 

340- 

1  Bird  v.  Lanius,  7  Ind.  615;  Board 
v.  Kromer,  S  Ind.  446;  Adams  v. 
Holmes,  48  Ind.  299;  Hopkins  v.  Stan- 
ley, 43  Ind.  553;  Killian  v. Eigenmann, 
57  Ind.  480;  Hodgson  v.  Jeffries,  52 
Ind.  334;  Ogle  -\  Dill,  61  Ind.  438,443; 
Lake  Erie,  etc.,  Co.  v.  Fix,  SS  Ind.  381, 
383;  Pitzer  v.  Indianapolis,  etc.,  R.  Co., 
80  Ind.  569;  Mcllvain  v.  State.  So  Ind. 
faylor  x>.  Burk, 91  Ind.  252;   Louis- 


ville, etc.,  Co.  r'.Woolery,  107  Ind.  381; 
Schultz  t\  Cremer,  59  Iowa,  1S2. 

"  Miller  :•.  Voss,  40  Ind.  307;  Truitt 
T'.Truitt,37  Ind. 514;  Glasgow-'.  Hobbs, 
52  Ind.  239;  Union,  etc.,  Co.  v.  Moore, 
80  Ind.  45S,  465;  Morris  v.  Morris,  119 
Ind.  341 ;  Fleetwood  v.  Dorsey  Machine 
Co.,  95  Ind.  491;  Kopelke  v.  Kopelke, 
112  Ind.  435;  Wabash,  etc.,  Co.  t'.Tretts, 
96  Ind.  450;  Pavey  v.  American  Ins. 
Co.,  56  Wis.  221. 

3  Iladley  :•.  Hadley,  S2  Ind.  75;  Pitzer 
v.  Indianapolis,  etc.,  R.  Co.,  80  Ind.  569. 
A  proper  request  is  indispensable  to 
make  the  denial  error.  Kalckhoff  v. 
Zoehrlaut,  43  Wis.  373. 

*  Summers  v .  Tarney,  123  Ind.  560. 
It  is  very  doubtful  whether  the  practice 
sanctioned  in  the  ease  cited  is  a  salutary 
one.  It  seems  clear  that  interrogatories 
may  sometimes  direct  the  minds  of  the 
jurors  to  the  controlling  points  in  the 
case  and  thus  lead  them  to  a  correct 
conclusion,  or,  at  least,  assist  them  in 
arriving  at  such  a  conclusion.  Counsel 
certainlv  have  a  right  to  comment  upon 
interrogatories.     Gresley  v.  State,  123 


REQUESTS   A\D   oil  ERS  693 

counsel  had  claimed  the  right  to  examine  and  comment  upon 
the  interrogatories  we  suppose  a  different  question  would  have 
been  presented.  It  would  be  unjust  to  deprive  counsel  of  this 
right,  and  yet  the  ruling  in  the  case  referred  to  might  lead  to 
this  result  unless  the  doctrine  there  declared  is  carefully  and 
rigidly  limited  to  cases  where  no  such  claim  is  duly  and  oppor- 
tunely made.  Where  the  request  is  denied  the  record  should 
affirmatively  show  when  it  was  made,  and  in  strictness,  the  re- 
quest should  be  set  forth  in  the  record,  but  where  the  record 
shows  that  the  jury  returned  answers  to  the  interrogatories  the 
presumption  is  that  the}-  were  duly  submitted.1  In  many  of 
the  earlier  cases,  although  there  was  much  conflict,  it  was  held 
that  the  request  and  the  submission  must  appear  by  bill  of  ex- 
ceptions, but  the  first  case  cited  in  the  note  overrules  the  cases 
declaring  a  different  doctrine  and  establishes  a  sound  and 
sensible  rule.  It  is  evident  that  any  other  rule  than  that  which 
now  prevails  must  be  unsound  for  it  disregards  the  presump- 
tion that  the  jury  and  the  court  acted  regularly  and  rightfully, 
and  also  violently  detaches  special  findings  from  a  general 
verdict  although  such  findings  are  duly  authenticated  by  the 
signature  of  the  foreman  of  the  jury. 

§  738.  Request  for  a  Special  Verdict — A  party  has  a  right,  upon 
due  request,  to  have  the  material  facts  fully  found  and  stated 
in  a  special  verdict,  leaving  to  the  court  the  duty  of  pronounc- 
ing the  law  upon  the  facts  thus  exhibited.2     To  make  the  duty 

Ind.   72;    Arkansas,  etc..  Co.  v.  Can-  v.  Fretz,  99  Ind.  458.     It  is  in  harmony 
man,  52  Ark.  517,  13  S.  W.  Rep.  2S0.  with  analogous  cases,  for  verdicts,  gen- 
1  Frank    --.    Grimes,     105     Ind.    346;  eral  or  special,  are  parts  of  the  record 
Shoner  v.  Pennsylvania   Co.,  2S  N.  E.  proper,  and  it  is  based  on  principle,  for 
Rep.  616.    The  case  first  cited  Overrules  there    is   no  conceivable   reason   for  di- 
many  former  decisions  upon  the  point  vorcing  a  properly  authenticated  rind- 
involved     here,  among    them:      Cleve-  ing    from  a  general   one  or  for  presum- 
land,  etc.,  Co.   V.    Bowen,   70   Ind.  47S;  ing    that   a   jury    voluntarily    did    what 
Hervev  v.  Parry, 82  Ind.  263;  Aiken  v.  they  were  not  under  a  duty  to  do. 
Ising,  94  Ind.  507;    Hamilton  ..  Sho. iff,  *  Hopkins    v.    Stanley,    43    Ind 
99  Ind.  63.     It  is,  however, in  harmony  558;   Bird  v.  Lanius,  7  Ind.  615;   Mich- 
with  the  decisions  in  other  cases,    Sal-  igan,  etc..  Co.  v.  Bivens,   13  Ind. 
ander  v,  Lockwood,  66  Ind.  285;  Terre  A.dams  Express  Co.  -  .  Pollock.  12  Ohio 
Haute,  etc..   Co.  v.  Clark,   73    Ind.    168;  St.  618.      The  jury  may  elect   to  return 
Boots  v.  Griffiths,  97  Ind.  241 ;  Redinbo  a  special  verdict.     Pittsburgh,  etc.,  Co. 


694  ERROR   IN  JUDICIAL   PROCEEDINGS. 

to  direct  a  special  verdict  imperative  a  request  is  necessary.1 
The  request  should  be  made  in  due  season  and  if  not  so  made, 
it  may  be  rightfully  denied,  but  it  is  not  error  for  the  court  to 
grant  the  request  at  a  very  late  stage  of  the  case,  for  instance, 
after  the  argument  has  begun  ; 2  it  is  not,  however,  bound  to  en- 
tertain a  request  made  so  late  in  the  case.  We  suppose,  how- 
ever, that  where  a  request  comes  so  late  it  would  be  error  to 
deny  the  adverse  party  a  reasonable  time  in  which  to  prepare 
a  draft  of  a  verdict,  but  in  order  to  present  the  question  for  re- 
view it  would  be  necessary  for  such  a  party  to  appropriately 
request  that  time  be  allowed  him  to  prepare  and  submit  a  form 
of  a  special  verdict.  It  is  implied,  of  course,  that  the  refusal 
of  the  request  must  be  followed  by  the  proper  exception  and 
the  ruling  properly  exhibited  by  the  record.  In  saying  that  a 
request  is  essential  to  make  it  the  duty  of  the  court  to  direct  a 
special  verdict  we  do  not  mean  to  imply  that  the  court  may 
not,  in  its  discretion,  direct  a  special  verdict  of  its  own  motion  ; 
what  we  mean  is,  that,  unless  there  is  a  request,  the  refusal 
can  not  be  made  available  as  error  on  appeal.  The  rule  is  that 
the  court  may  direct  a  special  verdict  on  its  own  motion,3  but 
it  is  under  no  duty  to  do  so  unless  a  request  is  appropriately 
preferred.  Where  a  special  verdict  is  appropriately  requested 
the  court  is  not  only  bound  to  direct  that  such  a  verdict  be  re- 
turned, but  it  is  also  bound  to  refrain  from  directing  a  general 
verdict.  The  party  who  demands  that  a  special  verdict  exhib- 
iting the  facts  be  returned  by  the  jury  can  not  be  embarrassed 
by  a  general  verdict  i  But  if  the  court  entirely  disregards  the 
general  verdict  and  acts  upon  the  special  verdict  there  is  no 
available  error,  inasmuch  as  the  ultimate  ruling  is  right  al- 
though reached  by  the  wrong  road.5     The  jury  may,  if  it  so 

v.   Ruby,   38    Ind.    294;     Stephens   on  *  Toler  v.  Keiher,  81   Ind.  383.     See 

Pleading,  92;   Ruffing  v.  Tilton,  12  Ind.  Bird  v.  Lanius,  7  Ind.  615,  621;   Noble 

2^j.  v.  Enos,  19  Ind.  72,  82. 

1  Louisville,  etc.,  Co.  v.  Kane,  120  5  Louisville,  etc.,  Co.  v.  Balch,  105 
Ind.  140,  22  N.  E.  Rep.  So;  Woollen  v.  Ind.  93.  In  Todd  v.  Fenton,  66  Ind. 
Whitacre,  91  Ind.  502,  504.  25,  28,  it  was  said:     "  A  special  verdict 

2  Lowman  v.  Sheets,  124  Ind.  416,  is  not  to  be  confounded  with  the  find- 
422.  ing  of  the  jury   upon  particular  ques- 

3  Weatherby  v.  Hii,rgins,  6  Ind.  73;  tions  of  fact,  to  be  stated  in  writing. 
Lowman  v.  Sheets,  124  Ind.  416.  Where  there   is  a   special  there  is   no 


REQUESTS  AND    OFFERS.  695 

elects,  return  a  special  verdict,  and  it  is,  of  course,  not  a  valid 
objection  to  a  verdict  returned  by  the  jury  of  its  own  motion, 
that  there  was  no  request  or  direction  to  return  a  special 
verdict.1  If  the  jury  of  its  own  volition  returns  both  a  special 
verdict  and  a  general  verdict,  the  refusal  of  the  court  to  strike 
out  the  latter  will  not  be  error,  if  it  appears  that  the  court  gave 
judgment  upon  the  former.2  It  is  undoubtedly  irregular  for  a 
jury  to  return  both  a  general  and  a  special  verdict,  for  the  in- 
consistency in  such  a  proceeding  is  manifest,  but  if  the  court 
acts  upon  the  controlling  verdict — the  special — there  is  no 
prejudicial  error ;  if,  however,  the  court  should  found  its  judg- 
ment upon  the  general  verdict,  and  that  should  be  directly  an- 
tagonistic to  the  special,  there  would  be  harmful  error.3 

739.  The  Practice  in  Requesting  Special  Verdicts — The  correct 
practice  is  for  counsel  who  request  a  special  verdict  to  prepare 
a  draft  to  be  submitted  to  the  jury.4  The  court  is  not  bound  to 
submit  the  draft  as  prepared  by  counsel,  but  may  put  it  in 
proper  form  and  make  necessary  corrections,  nor  is  the  jury 
bound  to  use  the  draft  prepared  by  counsel.5  "  The  degree  of 
supervision  which  the  court  may  exercise  over  the  forms  sub- 
mitted to  it  must,  manifestly,  be  left  largely  to  its  discretion, 

general  verdict,  and  the  jury  may  be  question  was  not  well  considered  and 

required  to  find  specially  upon  particu-  that  the  court  lost  sight  of  the  principle 

lar  questions  of  fact  only  in  cases  where  that  there  can  not  be  two   verdicts  in 

they  render  a  general  verdict."  the  same  case.     We  have  already  seen 

1  Hall  v.  Carter,  74  Iowa,  364,  37  N.  that  a  special  verdict  is  essentially  dif- 
W.  Rep.  956.  ferent  from  answers  to  interrogatories, 

2  Webster  v.  Bebinger,  70  Ind.  9,  14.  and    we  need  only  add  that    a  special 

3  The  decision  in  the  case  cited  in  verdict,  if  good  for  anything,  neces- 
the  preceding  note  really  proceeds  upon  sarily  covers  and  embraces  all  the  ma- 
the  theorj-  suggested  in  the  text  al-  terial  facts  and  hence  absolutely  cx- 
though  the  point  is  not  very   fully  or  eludes  a  general  verdict. 

clearly    developed.     The    decision    in  *  Mumford  v.  Wardwell,  6  Wall.  423; 

Hershman  v.  Hershman,  63  Ind.  451,  Lake   Shore,  etc.,  Co.   v.  Stupak,  123 

seems    to    be    against    the    conclusion  Ind.   210,    224;    Hopkins   v.  Stanley,  43 

stated,  hut  that  decision  is  opposed  to  Ind.  553,  :  Tidd's   Pr.  897;  Pittsburgh, 

principle  and  to  the  decisions  in  Todd  etc.,  Co.  :•.  Ruby,  3S  Ind.  294.  S.  C.  10 

v.  Fenton,  66  Ind.  25;     Louisville,  etc..  Am.  Rep.  1  11. 

Co.  v.  Balch,    105    Ind.   93;    Toler  v.  5  Millers.  Shackleford, 4  Dana (Ky.) 

Keiher,  Si    Ind.  383.     It  is  evident  that  264;   Hopkins  v.  Stanley,  43  Ind.  553. 
in  Hershman  v.  Hershman,  sufra,  the 


696  ERROR    IN   J  I   DICIAL   PROCEEDINGS. 

since  it  is  the  duty  of  the  court  to  instruct  the  jury  so  far  as  to 
enable  them  to  clearly  comprehend  the  matters  in  issue  and  the 
subjects  to  be  covered  by  the  special  finding."1  But  broad  as 
the  discretion  of  the  court  is,  it  does  not  extend  so  far  as  to 
permit  an  invasion  of  the  province  of  the  jury.  The  court  may 
reject  mere  general  conclusions  of  law  and  mere  matters  of 
evidence,  but  it  can  neither  state  facts  for  the  jury,  nor  can  it 
decide  questions  of  fact,  or  intimate  how  such  questions  should 
be  decided,  except  in  cases  where  there  is  no  conllict  of  evi- 
dence. All  questions  of  fact  upon  which  there  is  opposing  evi- 
dence must  be  left  to  the  decision  of  the  jury  unconstrained  by 
any  direction  or  instruction  from  the  court.  It  thus  appears 
that  the  authority  of  the  court  is  fenced  in  by  rules  which  can 
not  be  disregarded.  We  have  already  suggested  that  present- 
ing a  draft  of  a  special  verdict  is  not  equivalent  to  a  request,2 
and  we  repeat  the  suggestion  because  it  is  to  be  borne  in  mind 
that  the  request  is  the  foundation  of  the  right  to  allege  error 
upon  a  ruling  refusing  to  require  a  special  verdict. 

§  740.  Request  for  Inspection  and  Production  of  Documents — A 

request  for  the  production  or  inspection  of  documentary  evi- 
dence3 must,  under  our  code,4  be  in  writing,  and  so  it  should 
be  even  where  there  is  no  statute  requiring  a  written  request.5 
An  affidavit  must  accompany  the  motion  or  request,  and  it 
should  describe  with  reasonable  certainty  the  book,  paper  or 
other  instrument  which  it  is  desired  shall  be  produced  or  of 
which   an  inspection  shall    be   allowed.6      The   affidavit  must 

1  Louisville,  etc.,  Co.  v.  Flannagan,        *  R.  S.  iSSi,  §§  479,  4S0. 

113  Ind.  4SS,  494.    See,  generally,  Lou-  5  Cummings  v.  McKinney,  5  111.  57; 

isville,  etc.,  Co.  v.  Frawley,  no  Ind.  18;  Houseman  V\   Roberts,   5  C.  &  P.  394; 

Lake  Shore,  etc.,  Co.  v.  Stupak,  123  Ind.  Cates  v.  Winter,  3  Term  Rep.  306. 

210;  Louisville,  etc.,  Co.  v.   Hart,  119  6  Whitman   :•.    Weller,  39  Ind.  515; 

Ind.  273,  285;    Woollen  v.   Wire,   no  Duke  v.  Brown,  18  Ind. -in;  Bogart  v . 

Ind.  251;  Indianapolis,  etc.,  Co.  v.  Bush,  Broun,   5    Pick.   iS;    United   States  v. 

101  Ind.  5S2.  Dull",  6  Fed.   Rep.  45;  Olney   v.  Ilat- 

2  Louisville,  etc.,  Co.  v.  Kane,  120  cliiY,  37  Hun.  (N.  Y.)  2S6;  People  v. 
Ind.  140;  Woollen  v.  Whitacre,  91  Rector,  etc.,  6  Abb.  Pr.  Rep.  177;  New 
Ind.  502.  England  Iron  Co.  v.  New  York   Loan 

3  As   to  what    is   regarded    as    docu-  Co.,  55  How.  Pr.  351 ;  Walker  v.  Granite 
mentary    evidence,     see     Patterson    v.  Bank,  19  Abbott's  Pr.  1  n. 
Churchman,  122  Ind.  379,  3S5. 


REQ1   ESTS  AND   OFFERS". 


show  that  the  instrument  is  necessar}  and  material,  and  that  it 
is  in  the  hands  of  the  adverse  party.1  Notice  must  be  given 
the  party,  and  the  notice  must  be  reasonable.2 

§  741.  When  Notice  to  Produce  not  Required — In  what  we  have 
said  concerning  notice  to  produce  books,  papers  and  the  like. 
we  have  had  regard  to  instruments  of  evidence  and  not  to  writ- 
ten instruments  forming  part  of  the  pleadings.  When  an  instru- 
ment forms  a  part  of  the  pleadings  in  the  case,  it  is,  in  legal 
contemplation,  part  of  the  record.  This  is  true,  although  a 
copy  is  incorporated  in  the  pleadings.  It  is  manifest,  therefore, 
that  there  is  no  reason  for  requiring  notice  to  produce  the  origi- 
nal instrument  in  such  cases.  A  party  who  properly  makes  an 
instrument  a  part  of  his  pleading  impliedly  asserts  that  he  is 
ready  and  willing  to  produce  the  original  upon  request.  The 
authorities  are  agreed  that  in  such  cases  a  notice  to  produce  is 
not  necessary.3 

§  742.  Offers — General  Doctrine — A  party  who  asserts  a  right 
must  show  that  the  right  is  a  substantial  one  and  capable  of  en- 


1  Whitman  v.  Weller,  39  Ind.  515.  It 
is  held  in  many  cases  that  the  facts 
showing  the  materiality  must  be  stated. 
and  that  it  is  not  sufficient  to  state  in 
general  terms  that  the  instrument  is  ma- 
terial and  necessary.  Cassard  v.  Hin- 
man,  6  Duer.  695;  Opdyke  v.  Marble, 
44  Barb.  64;  Thompson  v.  Erie  R.Co., 
9  Abb.  Pr.  (X.S.)  212;  Julio  :•.  Ingalls, 

17  Abb.  Pr.  44S,  n.;   Davis  v.  Dunham, 
13  How.  Pr. 425;  Speyers v. Torstritch, 

5  Rob.  (N.  Y.)  606;  Pegram  :•.  Carson. 

18  How.  Pr.  519;   People  v.  Rector,  etc., 

6  Abb.  Pr.  177. 

2  Littleton  v.  Clayton,  77  Ala.  571; 
McDonald  v.  Carson,  95  N.  C.  377; 
United  States  V.  Duff,  6  Fed.  Rep.  45; 
Shreve  v.  Dulany,  1  Cranch.  C.C.499; 
Leaf  v.  Butt,  1  Carr  &  M.  (.51;  Foster 
v.  Pointer.  9  Car.  &  P.  718;  Dewitt  v. 
Prescott,  51  Mich.  298;  Atwell  v.  Mil- 
ler, 6  Md.  10;  Lawrence  v.  Clark,  14 
Mees.  <S:  W.  249.     See,  generally,  An- 


derson Bridge  Co.  v.  Applegate,  13  Ind. 
339;  United  States  v.  Winchester.  ? 
McLean,  135;  Grimes  v.  Fall.  15  Cal 
63;  Farmers',  etc.,  Bank  v.  Lonergan, 
2  1  Mo.  46.  If  the  court  errs  in  making 
the  order  and  the  instrument  is  not  used 
there  is  no  prejudicial  error.  Cleveland, 
etc.,  Co.  v.  Closser,  126  Ind.  34S.  An 
appeal  will  not  lie  from  such  an  order. 
Western  Union  Tel.  Co.  v.  Locke,  toy 
Ind.  9.  See  Board  v.  Fullen,  11S  Ind. 
15S. 

3  Silvers  v.  Junction  R.  Co..  17  Ind. 
142;  Bissel  v.  Drake.  [9  Johns.  66; 
Hammond  V.  Hopping.  1 3  Wend.  505; 
Hardie  v.  Kretsinger,  17  Johns.  293; 
Nealley  v.  Greenough,  25  N.  H.  525; 
McClean  v.  Hertzog,  6  Serg.  &  R.  154; 
Lawson  v.  Bachinan,  Si  N.  Y.  616; 
1  looker  v.  Eagle  Bank,  30  N.  V.83 
■  v.  Jones,  4  Taunt.  865;  Joll 
Taylor,  1  Camp.  143;  Whitehead  v, 
Scott,  1  Mood.  &  R.  2. 


698  ERROR  IN  JUDICIAL  PROCEEDINGS. 

forcement.  One  who  demands  a  decision  of  a  court  must  pre- 
sent actual  matters  for  decision.  He  must  show  that  he  asks 
the  court  to  decide  upon  an  actual  state  of  facts  and  not  upon  a 
mere  feigned  controversy.  A  party  has  no  right  to  demand  a 
ruling  unless  he  brings  forward  the  facts  upon  which  he  prays 
the  court's  decision.  If  parties  were  permitted  to  call  for  rulings 
upon  mere  general  statements  or  abstract  questions,  it  would 
often  happen  that  courts  would  be  occupied  in  ruling  on  fictitious 
controversies.  The  law  concerns  itself  with  the  concrete,  not 
the  abstract.  Parties  must  not  only  be  willing,  but  they  must 
be  able  to  present  to  the  court  the  real  facts  at  the  time  the 
ruling  is  demanded.  This  can  only  be  done  by  offering  to 
present  the  facts  to  the  court  by  competent  and  proper  means 
and  by  means  at  hand.  It  is  necessary  to  bring  into  the 
record  what  the  partv  offers  in  order  that  the  appellate  tribunal 
may  obtain  a  clear  and  adequate  conception  of  the  nature  and 
effect  of  the  ruling  it  is  called  upon  to  review,  as  well  as  to  en- 
able that  tribunal  to  see  that  the  question  grows  out  of  an  actual 
controversy. 

§  743.  Offers  of  Oral  Testimony — In  the  examination  in  chief 
the  exclusion  of  testimony  is  not  available  as  error  unless  the 
party  makes  an  offer  to  prove  the  facts  which  he  assumes  that 
his  question  will  elicit.  Where  an  objection  is  properly  inter- 
posed more  must  be  done,  in  cases  where  the  objection  is  sus- 
tained, than  to  ask  the  question ;  the  party  producing  the 
witness  and  insisting  upon  the  question  must  state  what 
he  proposes  to  prove  by  the  witness.1     This  is  necessary  in  or- 

1  Curry  v.  Bratney,  29  Ind.  195;  First  roth,  m   Ind.  159;  Smith  v.  Gorham, 

National  Bank  v.  Colter,  61    Ind.  153;  119  Ind.  436.     The  rule  as  stated  in  the 

Lewis    v.   Lewis,   30   Ind.  257;    Adams  text  has  been  enforced  in  a  vast  number 

v.  Crosby,  4S  Ind.  153;    C hairiness  v.  of  cases,  and  the  decisions  exhibit  rul- 

Chamness,  53  Ind.  301;  Toledo,  etc.,  v.  iiiL,r>  upon  it   in   almost  every  conceiv- 

Goddard,  25  Ind.  185;   Farman  v.  Lau-  able   shape   and   form.     Smethhurst  t>. 

man, 73  Ind.  56S;  Lowder  v.  Lowder,  58  Independent,  etc..    Church,   14s  Mass. 

Ind.  53S;  Mcllvain  :•.  State.  So  Ind.  69;  261;   Smith  v.  Niagara  Fire  Ins.  Co.,  60 

Cox  v.  Dill,  S5   Ind.    334;   Conden   v.  Vt.  682;   Blumhardt  v.  Rohr  (Md.).  17 

Morningstar,  94    Ind.   150;    Sharpe    v.  Atl.  Rep.  266;   State  v.  Marker,  43  Kan. 

Graydon,  99    Ind.  23J;   Whitehead   :•.  262,    23    Pac.     Rep.     575;     Snead     v. 

Mathaway,  85  Ind.  85;   Harter  v.  Eltz-  Tietjen     (Ariz.),    24    Pac.    Rep.    324; 


REQUESTS   AND   OFFERS.  699 

der  to  enable  the  court  to  determine  whether  the  testimony 
is  competent  and  material.  The  record  must  show  the  offer 
and  show  also  the  presence  of  the  witness.'  The  court  will  not 
rule  upon  mere  abstract  questions,  and  hence  it  must  appear  that 
there  was  an  actual  offer  and  a  present  ability  to  adduce  the 
proffered  testimony.  The  facts  proposed  to  be  proved  must  be 
specifically  stated.2  If  the  evidence  which  the  appellant  pro- 
poses to  introduce  "  rests  in  parol,  then  the  witness  from  whom 
the  testimony  is  to  come  should  be  placed  upon  the  stand  and  a 
question  propounded,  and  if  objected  to,  and  the  objection  sus- 
tained," an  offer  should  be  made  "as  to  what  the  witness  will 
state  in  answer  to  the  question."3  In  short,  there  should  be 
satisfactory  indications  of  willingness,  readiness,  good  faith  and 
present  ability. 

§  744.  Showing  Materiality  and  Relevancy — If  the  offered  testi- 
mony upon  its  face,  or  considered  in  connection  with  evidence 
already  given,  shows  its  materiality  and  relevancy,  no  further 
showing  is  required,  but  where  the  materiality  and  relevancy 
does  not  so  appear  the  relevancy  and  materiality  must  be  made 
to  appear.4  This  is  often  done  by  the  statement  of  counsel 
supplementing  the  offer  wherein  he  undertakes  to  introduce 
such  evidence  as  will  impress  upon  that  offered  materiality 
and  relevancy,5  but  it  is  discretionary  with  the  court  to  accept 

Mordhorst  v.  Neb.  Tel.  Co..  28  Neb.  610,  3  Smitb  v.  Gorham,  1 19  Ind.  436,  439. 

44  N.  W.   Rep.  469;    Mergentheim  v.  *  Browning    v.   Hight,  7S   Ind.    257; 

State,  107  Ind.  567,  S  N.  E.  Rep.  568;  State  v.  Lewis,  20   New   333.   22   Pac. 

Tedrowe  v.  Esher,  56  Ind.  443;   Shellito  Rep.  241;     United   States  v.  Gibert,  2 

v.  Sampson,  61   Iowa,  40.     It  is  some-  Sumn.  (U.  S.)   19;     Bank  of  Pleasant 

times  necessary  to  accompany  the  offer  Hill  v.  Wills,  70  Mo.  275;    Aull  Savings 

by  a   showing  of  the   relevancy   of  the  Bank  V.  Aull,  80   Mo.  199:    Jackson  v. 

proffered      testimony.      Browning     v.  Hardin,  S3  Mo.   175,   1S7;     Tru-t, 

Hight,  7S  Ind.  257;  State   v.   Lewis,  20  Brooklyn   Fire   In                       How.    Pr. 

Nev.  333,  22  Pac.  Rep.  241.     But  this  is  44S;     Abney  V.  Kingsland,  10  Ala.  355, 

not  necessary  where  the  offer  shows  the  S.  C.  44   Am.    Dec.  491;    Mechelke  v. 

testimony  to  be  pertinent  and  material.  Bremer,  59  Wis.  57.  17  N.  W.  R< 

1  Mills  v.  Winter,  94  Ind.  329;  Echs-  r  Davis  v.  Calvert,  5  Gill.  &  J.  21 

bach  v.  Hurtt,  47  Md.  61,  66;  Scotland  C.  25  Am.  Dec.  283;   Place  v.  Minster, 

Co.  v.  Hill,  112  U.  S.  1S3,  1S6;  Smith  65N.Y.89;   Williams  v.  Grand  Rapids, 

V.  Gorham,  119  Ind.  436.  53    Mich.   271;    Hamilton    v.   Summers, 

'Over    v.    Schiffling,   102    Ind.    191;  13  B.  Mon.  11.  S.  C.  54  Am    Dec 

Carskadden  v.  Poorman.  10  Watts.  82,  Pittsburgh,  etc.,  Co.  :.  Conway.  57  Ind. 

S.  C.  36  Am.  Dec.  [45.  52;    First    Unitarian    Society  V.  Faulk- 


700 


ERROR   IN  JUDICIAL  PROCEEDINGS. 


or  reject  the  statement.  If  the  court  so  elects  't  may  require 
that  evidence  making  that  offered  relevant  shall  be  first  given. 
Ordinarily,  however,  the  statement  of  counsel  is  provisionally 
accepted.  If  not  made  good  the  course  for  the  adverse  party 
is  to  move  to  strike  out  the  testimony  admitted  upon  the  faith 
of  the  statement.1  The  court  has,  of  course,  the  right  and  the 
power  to  require  the  production  of  such  evidence  as  will  make 
that  offered  competent,2  but  the  usual  rule  is  to  allow  counsel 
the  privilege  of  introducing  evidence  in  the  order  they  prefer.3 
It  is  necessary  for  the  court,  in  order  to  decide  upon  the  com- 
petency of  offered  testimony,  to  determine  whether  there  has 
been  evidence  given  making  that  offered  relevant  and  material, 
but  in  so  deciding  the  court  does  not  intimate  any  opinion  as 
to  the  probative  force  of  such  evidence  and  hence  does  not  in- 
vade the  province  of  the  jury.4     But  while  the  court  must,  in 


ner,  91  U.  S.  415;  Piper  v.  White,  56 
Pa.  St.  90;  Abney  v.  Kingsland,  10 
Ala.  355,  S.  C.  44  Am.  Dec.  491 ;  Carnes 
v.  Piatt,  15  Abb.  Pr.  R.  (N.  S.)  331. 

1  People  v.  Millard,  $$  Mich.  63; 
People  v.  Hall,  48  Mich.  482.  The 
grounds  upon  which  the  motion  to 
strike  out  is  based  should  be  specifically 
stated,  and  in  the  event  that  the  motion 
is  denied  the  record  must  show  the 
motion  with  its  specifications,  and  show, 
also,  the  proper  exception. 

2  Village  of  Ponca  v.  Crawford,  iS 
Nil).  551,  26  N.  \V.  Rep.  305;  Johnston 
v.  Jones,  1  Black.  209;  Joslin  v.  Grand 
Rapids,  etc.,  Co.,  53  Mich.  322;  Marshall 
:  .  Davies,  7S  N.  Y.  414;  Chase  v.  Lee, 
50  Mich.  237,  26  V  W.  Rep.  4S3;  Wells 
7\  Kavanaugh,  74  Iowa,  372,  37  N.  W. 
Rep.  7S0. 

3  Clawson  :•.  Lowry,  7  Blackf.  140; 
(>inn  v.  Collin-.  \\  Ind.  271;  Burns  v. 
Harris,  66  Ind.  536.  The  procedure  in 
the  matter  of  giving  evidence  is  largely 
in  the  discretion  of  the  trial  court. 
Holmes  v.  Hinkle,  63  Ind.  518;  Harker 
v.  State,  S  Blackf.  540;   Dane  v.  Treat, 

35    Mr.    19S. 

*  Pedigo   v.   Grimes,    113    Ind.    14S; 


Shugarl  v.  Miles.  125  Ind.  445;  Cleve- 
land, etc.,  Co.  v.  Closser,  126  Ind.  349, 
364.  "In  admitting  evidence  tending 
to  prove  a  material  fact  the  court  does 
not  determine  the  weight  or  value  of 
such  evidence,  it  simply  determines 
that  the  evidence  shall  be  heard."' 
Whitlock  v.  Consumers  Gas,  etc.,  Co., 
127  Ind. 62, 64;  Colglazier  r.Colglazier,, 
124  Ind.  196;  Indiana,  etc.,  Co.  v.  Ad- 
amson,  114  Ind. 282;  Robinson  v.  Ferry, 
11  Conn.  460;  Harris  v.  Wilson,  7 
Wend.  57;  Clicquot's  Champagne, 
3  Wall.  114;  Swearingen  v.  Leach,  7  B. 
Monr.  28^;  Chandler  v.  Von  Roeder,  24 
How.  (U.  S.)  224,227.  Where  evidence 
is  competent  it  is  the  duty  of  the  court  to 
receive  it,  l< -a\  ing  it  for  the  jury  to  de- 
termine its  weighl  and  value.  Harbor 
v.  Morgan,  4  Ind.  158;  Union,  etc.,  Co. 
v.  Buchanan,  100  Ind.  63,  73;  Laman  v. 
Crooker,  97  Ind.  163,  S.  C.49  Am.  Rep. 
437;  Boots  v.  Canine.  94  Ind.  40S; 
Nave  v.  Flack.  90  Ind.  205,  S.  C.  46 
Am.  Rep.  205;  Hall  V.  Henline,  9  Ind. 
256;  Grand  Rapids,  etc.,  Co.  v.  Dillcr, 
no  Ind.  223;  Bedgood  v.  State,  115 
Ind.  275,  2S0. 


REQUESTS   AND    OFFERS.  701 

many  instances,  decide  a  question  of  fact  in  passing  upon  the 
admissibility  of  testimony,1  it  must,  if  called  upon  by  a  proper 
request,  instruct  that  in  deciding  the  question  of  fact,  it  does 
not  assume  to  determine  it  for  the  jury.  It  may,  indeed,  be 
error  to  submit  purely  preliminary  questions  to  the  decision  of 
the  jury,  such,  for  instance,  as  whether  there  is  evidence  of  the 
execution  of  an  instrument  sufficient  to  entitle  it  to  be  read,2  or 
whether  there  is  sufficient  evidence  of  search  for  a  lost  instru- 
ment.3 We  say  that  it  may  be  error  to  refer  such  a  question  to 
the  jury  for  decision,  but  we  do  not  mean  to  imply  that  it  would 
always  and  necessarily  be  prejudicial  error.  We  can  readily 
conceive  cases  where  the  error  would  not  be  harmful,  as,  for 
instance,  where  the  ultimate  decision  is  made  by  the  court  and 
the  final  and  controlling  decision  is  correct.  If  the  final  ruling 
is  correct  the  irregularity,  or  even  error,  in  reaching  the  con- 
clusion might  not  be  sufficient  to  reverse  the  judgment.  It  is 
nevertheless  true,  as  a  general  rule,  that  the  court  can  neither 
abdicate  nor  delegate  its  functions  to  the  jury,  but  while  this 
is  true  it  does  not  necessarily  result  that  because  the  court  does 
improperly  submit  preliminary  questions  to  the  jury  the  judg- 
ment must  fall,  since  whether  the  judgment  stands  or  falls  must 
depend  upon  the  conclusion  ultimately  made,  for  if  finally  made 
bv  the  court  it  becomes  the  controlling  element  in  the  case. 
But  if  it  should  appear  that  the  erroneous  mode  pursued  prob- 
ably resulted  in  harm  to  the  complaining  party  the  judgment 
can  not  stand,  nor  can  it  stand  if  it  appears  that  the  court 
wholly  surrendered  its  functions  or  powers  to  the  jury.  The 
evidence  of  the  loss  of  an  instrument  must  be  such  as  to  satisfy 
the  court  that  a  diligent  search  has  been  made  in  the  proper 
places,  and  unless  there  is  such  evidence  the  ruling  of  the  court 
rejecting   secondary  evidence  will   not  be   overturned.4     It  is 

1  Hitchins  v.  Eardley,  L.  R..  2  Prob.  545;    Thomason  v.  Odum,3i  Ala.  ro8; 

&   Div.  248,  S.  C.  .|o  L.  J.  (Prob.  ,V  De  Graffenreid  v.  Thomas,  i\  Ala.  681. 

Mat.)  70;  Bartlett  v.  Smith,  u  Mees&  '  Loewe  v.  Reismann,  8  Brad.   (111. 

W.  4S3;  Tabor  v.  Staniels,  2  Cal.40.  A.pp.)  525;  Tayloe  v.  Riggs,  1  Pet. 591; 

*  Hart    v,   Heilner,   3    Rawle    (Pa.).  Graff  v.  Pittsburgh,  etc.,  Co.,  31  Pa   St 

407;    Stowe  V.  Querner,  L.  R..  5  Exch.  4S9;    Witter   9.  Latham.  1:    Conn.  392; 

155;  Robinson  v.  Ferry,  11  Conn.  460;  Donelson  v.  Taylor,  8  Pick.  390. 

Ratliffe  v.  Huntly,  5  [red.  Law  (N.  C),  *  Howe  v.  Fleming,  1:3  Ind.  :6:. 


702 


ERROR   IX  JUDICIAL   PROCEEDINGS. 


evident  from  what  has  been  said,  and  from  the  authorities  cited, 
that  preliminary  questions  of  the  character  indicated  must,  as 
a  general  rule,  be  determined  by  the  court,  and  that  it  is  suffi- 
cient if  the  court  is  satistied  of  the  competency  of  the  evidence 
adduced  upon  the  preliminary  questions.  It  is  true  that  ex- 
pressions found  in  some  of  the  cases  seem  to  indicate  a  different 
rule,  but  it  will  be  found  on  examination  that  in  those  cases  the 
question  was  not  directly  presented,  and,  of  course,  was  not 
decided.1 

§  745.   Effect  of  miugling  Competent  with  Incompetent  Evidence — 

The  court  is  under  no  duty  to  dissect  an  offer  of  evidence  and 
separate  the  competent  from  the  incompetent.  If  a  party  offers 
evidence  composed  of  proper  and  improper  elements,  the  entire 
offer  may  be  rightfully  rejected.  The  only  offer  upon  which 
error  can  be  successfully  alleged  is  one  wherein  no  incompe- 
tent evidence  is  contained.  It  is,  no  doubt,  the  right  of  the 
court,  if  it  so  elects,  to  separate  the  competent  from  the  incompe- 
tent and  admit  the  former,  but  it  is  mere  matter  of  grace  for  it 
to  do  so,  and  its  refusal  is  not  error  available  on  appeal.2 


1  McCormick,  etc.,  Co.  v.  Gray,  114 
Ind.  340,  346;  McComas  v.  Haas,  107 
Ind.  512;  Johnston,  etc.,  Co.  v.  Bartley, 
94  Ind.  131;  Millikan  v.  State,  70  Ind. 
310.  It  is  a  rudimental  principle  that 
questions  as  to  the  competency  of  evi- 
dence are  for  the  court,  not  for  the  jury, 
and  in  order  to  determine  such  ques- 
tions the  court  must,  of  necessity,  pro- 
visionally, although  not  always  finally, 
decide  questions  of  fact.  1  Greenleaf 
on  Evidence,  §  49;  Company  of  Car- 
penters -•.  I  lay  ward,  1  Douglas,  374; 
Chandler  v.  Von  Roeder,  24  How.  (U. 
S.)  227;  Wittkowsky  v.  Wasson,  71  N. 
C.  451.  In  the  case  of  Thompson  v. 
Thompson,  9  Ind.  323,  the  court 
quoted  with  approval  Greenleaf  s  state- 
ment that,  "The  evidence  of  loss  is 
addressed  to  the  court  and  not  to  the 
jury."  1  Greenleafs  Evidence,  §  558. 
See,  also,  Carter  v.  Bennett,  4  Fla.  283; 
De  France  v.  De  France,  34  Pa.  St.  3S5; 


Davis  v.  Charles  River,  etc.,  Co.,  11 
Cush.  506;  Reynolds  v.  Lounshury,  6 
Hill,  534;  Scovell  v.  Kingsley,  7  Conn. 
2S4;  Pleasants  v.  Fant,  22  Wall.  116. 

2  Shewalter  v.  Bergman,  123  Ind.  155, 
156;  Jones  v.  State,  11S  Ind.  39;  City  of 
Terre  Haute  v.  Hudnut,  112  Ind.  542; 
Pape  v.  Wright,  116  Ind.  502;  Louis- 
ville, etc.,  Co.  v.  Falvey,  104  Ind.  409; 
Cuthrcll7>.Cuthrell,ioi  Ind.  375;  Wolfe 
v.  Pugh,  101  Ind:  293;  Elliott  v.  Rus- 
sell, 92  Ind.  526;  Sohn  v.  Jervis,  101 
Ind.  1578;  Over  v.  Schiffling,  102  Ind. 
191;  St.  Louis,  etc.,  R.  Co.  v.  Hen- 
dricks, 4S  Ark.  177,  S.  C.  3  Am.  St. 
R.  220;  Smith  v.  Arsenal  Bank,  104  Pa. 
St.  518.  The  principle  on  which  the 
rule  rests  is  illustrated  by  the  case 
wherein  it  was  held  that  a  motion  to 
strike  out  evidence  embracing  both 
competent  and  incompetent  evidence 
may  be  overruled  without  error.  Way- 
mire   v.  Lank,   121     Ind.   1;     Staser  v. 


REOJJESTS  AND   OFFERS. 

§746.  Offer  Unaccompanied  by  Interrogatory  Unavailing — Tin- 
party  who  desires  to  reserve  a  question  upon  rulings  excluding 
testimony  must  propound  the  appropriate  interrogatories.  Of- 
fers where  no  questions  have  been  asked  calling  for  the  testi- 
mony will  not  avail  on  appeal.  In  the  absence  of  the  interroga- 
tories the  court  will  not  consider  the  competency  of  the  pro- 
posed testimony.1 

§  747.  Offer  Not  Required  on  Cross-Examination — The  offer  of 
evidence  is  required  on  the  direct  examination,  but  not  on  cross- 
examination.  If  the  appropriate  interrogatories  are  propounded 
on  cross-examination,  and  due  exception  is  reserved  in  the 
event  that  the  court  disallows  the  interrogatories,  the  question 
is  saved  for  review  without  an  offer  or  statement  of  wrhat  the 
cross-examiner  proposes  to  elicit.  The  reasons  for  making  a 
distinction  between  the  direct  examination  and  the  cross-exami- 
nation are  obvious.  It  is  unnecessary  to  give  them  since  that 
is  done  in  the  decisions  of  the  court  and  the  question  is  fully  set 
at  rest.2 

§  748.  Offer  of  Documentary  Evidence — Where  a  document  is 
offered  and  excluded,  it  must  be  brought  into  the  record  in  order 
that  the  court,  on  appeal,  may  determine  its  competency.  Un- 
less the  document  is  presented  to  the  trial  court  in  due  form, 
and  the  document  and  the  mode  of  its  presentation  to  that  court 3 
properly  shown  by  the  record,  the  appellate  tribunal  will  not 
overthrow  the  ruling  of  the  lower  court.1     Where  documents 

Hogan,  120  Ind.  207;  Pettigrew  p. Bar-  *  Harness  v.  State,  57  Ind.  1;   Batten 

num,  11  Md.  (34;  Wallis  t>.  Randall,  81  v.    State.  80    Ind.  394,   400;  Heagy   v, 

N.  Y.  164;  Day  p.  Henry,  104  Ind.  324.  State,  85  Ind.  260;  llutts  v.    Hutts,  '.2 

1  Tobin    v.    Young,     124    Ind.     507;  Ind.    214,    225;   Hyland    :•     Milner,   99 

Clanin  f .  Fagan,  124  Ind.  304;    Vickery  Ind.   308;    Bedgood    :■.  State,    115    Ind, 

v.  McCormick,   117   Ind.  594;  City  of  275;  O'Donnell  v.  Segar,  25  Mich. 367, 

Terre    Haute  v.   Hudnut,  112   Ind.  542,  372;   Martin  v.  Elden,  32  Ohio  St.  282; 

549;    Beard    v.   Lofton,  102    Ind.    41)8;  Stanton  Co.  v.  Canfield,  10  Neb.  389,  6 

Seavey  v.  Walker,  10S  Ind.  ;S;  Woolry  N.  W.  Rep.  466. 

v.   Louisville,    etc.,    Co.,  107    Ind.    381;  3  Williams    v.  State,   127  Ind.  471.  2t> 

Ralston  v.   Moore.  10,5    Ind.   243;  Judy  V  E    Ri 

v. Citizen,  101  Ind.  18;  Higham t>. Van-  'Gould  v.   Weed,  12   Wend.   12,  24; 

osdol,  101    Ind.  160;   Robinson  v.  State,  Scripps  v.  Reilly,  38  Mich.  10;  Keely  V. 

1    Lea  (Term.),  673;   Scotland  County  Newcomer,  J  Md.241. 
v.  Hill,  112  U.  S.  1S3, 1S6;  Eschback  v. 
Hurtt.  47  Md.  61,  66. 


704  ERROR  IN  JUDICIAL  PROCEEDINGS. 

are  offered  they  should,  in  strictness,  be  handed  to  the  court 
for  examination  and  not  go  to  the  jury  in  any  form  until  the 
court  rules  them  competent.  Counsel  should  not  be  permitted 
to  get  them  before  the  jury  under  pretence  of  reading  them  to 
the  court.1  As  a  general  rule  a  party  can  not  successfully  offer 
part  of  an  entire  document,  he  must  offer  all.  If  the  instrument 
offered  is  admitted  it  goes  to  the  jury,  in  most  cases,  as  an  en- 
tirety.2 

§  749.  Repeating  Offers— Where  an  offer  is  once  well  made 
there  is  no  necessity  for,  nor  is  there  propriety  in,  repeating  it.  If 
the  question  is  once  fully  and  directly  presented  it  is  as  effective 
as  if  it  were  presented  a  multitude  of  times.  It  may  sometimes 
happen  that  the  question  sought  to  be  saved  can  be  presented 
under  different  phases,  or  in  different  lights,  and  where  this  is 
so  it  is  not  improper  to  present  it  in  various  forms.  But  where 
the  offer  is  once  fully  made  and  the  question  directly  and  ade- 
quately presented,  and  there  is  no  change  of  positions  or  condi- 
tions, a  repetition  of  the  offer  is  censurable.3  Counsel  some- 
times resort  to  the  artifice  of  multiplying  offers  for  the  purpose 
of  influencing  the  jury,  and  this  practice  the  courts  have  sting- 
ingly  rebuked.4  As  we  have  shown  elsewhere,  a  party  who 
fully  and  appropriately  presents  a  question  to  the  court  for  de- 
cision has  a  right  to  assume  that  the  court  will  adhere  to  the 
theory  declared  or  indicated  by  its  ruling,5  so  that,  having  once 
obtained  a  ruling,  he  is  under  no  obligation  to  again  present  the 

1  Philpot  v.  Taylor,  75  111.  309,312;  147,   S.  C.  35  Am.   Dec.   243;    Bell  v. 

Scripps  v.  Reilly,  3S  Mich.  10;     Keedy  Keefe,  12  La.  Ann.  340.     See,  generally, 

v.  Newcomer,  1  Md.  241.  Tomlinson  v.  Briles,  101  Ind.  538;  Carr 

*  Brown  v.  Eaton,  98  Ind.  591,  595;  V.  Hays,  no  Ind.  40S;  Olvey  V.  Jack- 
Anderson  v.  Ackerman,  8S  Ind.  481;  son,  106  Ind.  2S6;  Thames,  etc.,  Co.  v. 
State  v.  Hawkins,  81  Ind.  486;  Miles  v.  Beville,  100  Ind.  309;  Gibson  v.  Lacy, 
Wingate,  6  lUd.  458;  Coats  v.  Gregory,  87  Ind.  202;  Ashley  v.  Laird,  14  Ind. 
10  Ind.  345;    Foot  v.  Glover,  4  Blackf.  222. 

313;     McNutt   v.  Dare,  8   Blackf.  35;  3  Scripps  v.  Reilly,  38  Mich.  10,  14. 

Jenkins  v.  State,  78  Ind.  133;   Miller  v.  4  Scripps    v.    Reilly,    38    Mich.     10; 

Deaver,  30  Ind.  371;    Miles  v.  Loomis,  People  v.  Millard,  53   Mich.  63.     See 

75  N.  Y.  2S8,  S.  C.  31   Am.  Rep.  470;  People  v.  Hall,  4S  Mich.  482. 

Machlin   v.  New. England,  etc.,  Co.,  33  6  Ante,  §  591. 
La.  Ann.  Soi;   Hewitt  v.  Buck,  17  Me. 


REQJJESTS  AND    OFFERS.  7()5 

question.     The  court  may,  of  course,  change  its  ruling,  but  the 
party  has  a  right  to  act  upon  the  assumption  that  there  will  be 
no  change,  and  hence  does  not  strengthen  his  position  by  re- 
peating offers  of  evidence  once  fully  ruled  upon  by  the  court. 
45 


CHAPTER  X. 


MOTIONS   FOR  JUDGMENT    AND    INCIDENTAL    MATTERS. 


§  750.    Introductory. 

751.  Motions   for   judgment   on    the 

pleadings. 

752.  Special  interrogatories   to  jury 

—  Requesting     judgment    on 
the  answers. 

753.  Special  verdicts  —  Motions  for 

judgment  on. 

754.  Effect  of  moving  for  judgment. 

755.  Distinct  causes  of  action. 

756.  Motion  essential  to  save  ques- 

tions upon  special  verdicts. 

757.  Special  finding — Characteristics 

and  incidents. 

758.  The    motion    for   a    venire   de 

novo — The  general  doctrine. 

759.  Venire  de   novo — The    Indiana 

rule. 

760.  The  motion  for  a  venire  de  novo 

as  applied  to  a  special  finding. 


§  761.    O  nice  of  the  motion  for  a  venire 
de  novo. 

762.  Time  of  filing  the  motion. 

763.  Requisites  of  the  motion. 

764.  Special    finding — Motion    to 

strike  out. 

765.  Special    finding  —  Particular 

facts  outside  of  the  issues. 

766.  The   difference    between    cases 

where  only  particular  facts  are 
outside  of  the  issues  and  cases 
where  the  whole  finding  is 
outside. 

767.  Finding   wholly  outside  of  the 

issues. 
76S.    Practice    where    the    judgment 
does  not  follow  the  finding  or 
verdict. 


§  750.  Introductory — One  of  the  usual  means  employed  in 
making  error  available  is  a  motion.  A  motion  is,  indeed,  very 
often  essential  to  the  existence  of  error,  inasmuch  as  it  is  very 
frequently  the  only  appropriate  mode  of  requesting  a  decision, 
and,  as  we  have  shown  in  another  place,  there  can  be  no  error 
unless  there  is  a  request  to  decide  and  a  refusal  to  decide,  or  a 
decision.  Motions  asking  affirmative  relief  are  really  requests, 
since  they  ask  the  court  to  grant  an  order  or  make  a  decision.1 
This  is  true  of  motions  to  make  a  complaint  more  specific,  to 
suppress  a  deposition,  to  discharge  the  jury,  and  of  many  more 
motions  in  use  in  practice.     But  it  is  not  our  purpose  to  discuss 

1  "  This  may  be  done  upon  what  is  parties  or  their  counsel,  in  order  to  ob- 
called  a  motion,  which  is  an  occa-  tain  some  order  cr  rule  of  court."  3. 
sional  application  to  the  court  by  the     Blackst.  Com.  304. 

(706) 


MOTIONS   FOR  JUDGMENT.  707 

at  length  the  subject  of  motion^  generally.  We  shall  confine 
our  discussion  to  the  principal  motions  required  to  make  an  er- 
roneous ruling  available  for  the  reversal  of  a  judgment.  The 
motions  here  considered  are  those  which  call  for  a  decision  and 
thus  lay  the  foundation  for  alleging  error.1 

§  751.  Motion  for  Judgment  on  the  Pleadings — A  party  who  de- 
sires to  secure  a  consideration  of  his  right  to  a  judgment  on  the 
pleadings  must,  as  a  general  rule,  make  the  appropriate  motion 
in  the  trial  court.  The  motion  is  essential  to  call  forth  a  de- 
cision upon  the  particular  question  he  desires  to  present  on  ap- 
peal, and  the  motion  must  be  such  as  to  properly  present  to  the 
court  of  original  jurisdiction  the  specific  questions  upon  which 
it  is  asked  to  give  a  decision.2  The  closer  the  adherence  to  the 
rule  that  requests  must  be  so  framed  as  to  fully  and  clearly  in- 
dicate the  questions  upon  which  a  decision  is  sought,  the  better 
the  system  of  procedure,  inasmuch  as  the  adherence  to  the  rule 
advises  fairly  the  opposite  party  of  what  he  is  to  meet  and  in- 
forms the  court  upon  what  it  is  expected  to  pronounce  judg- 
ment.3 

§  752.  Special  Interrogatories  to  Jury — Requesting  Judgment  on 
the  Answers — Where  a  general  verdict  is  returned  and  answers 
are  also  made  by  the  jury  to  special  interrogatories  submitted 
to  them,  the  party  who  seeks  judgment  on  the  special  inter- 
rogatories must  make  the  proper  motion   for  judgment.4     The 

1  See  post,  "Presenting  an  oppor-  court  to  consider  such  questions  as  its 
tunitv  for  review."     Chapter  XI  V.  attention   may  he  called   to  if  they  are 

2  Ante,  §  4S1.  "  Rendering  judgment  properly  before  it,  but  none  other." 
on  the  pleadings."  It  is.  as  we  believe,    the  object  of  the 

3  In  Brown  v.  Jones,  125  Ind.  375,  code  to  secure  specific  requests,  mo- 
25  N.  E.  Rep.  452,  the  court  said:  tions  and  objections,  but  it  must  be 
"No  specific  causes  for  giving  judg-  said  that  our  own  and  other  courts 
ment   in  favor  of  the   appellant   upon  have  not  always  so  interpreted  it. 

the  state  of  the  pleadings   were    stated  *  Ante,    ;>j  {^i.~,\~-     Louisville, 

in    his    motion,   and    if    for    no    other  Co.?.  Stommel.  126  Ind.  35;   Ohio.  etc.. 

reason  the  court  might    for   this    rea-  I                                                       [.Town  of 

son    have     very     properly      overruled  Poseyville  :•.  Lewis.  120  Ind. 80;  Smith 

the  motion.     The   motion  should  have  :•.    Heller,    11. >  Ind.   212;   Chi 

been  drawn  so  as  to  direct    the  court's  Co.  :•.    Ostrander,   u<>   Ind.  259;   Cin- 

attention  to  the  questions  -"tight  to  be  cinnati,  etc.,  Co.  :•.  Clifford,  115  Ind. 

raised  thereby.     It  is  the  business  of  the  460;    RedeUheimer  r.   Miller,   107   Ind. 


7  on 


ERROR   IN   [I   DICIAL  PROCEEDINGS. 


motion  is  not,  as  is  sometimes  said,  for  judgment  notwithstand- 
ing the  verdict,  but  for  judgment  upon  the  facts  contained  in 
the  answers  of  the  jury  to  the  interrogatories.  The  theory  upon 
which  the  motion  proceeds,  and  upon  which  it  must  proceed,  is 
that  the  facts  entitle  the  moving  party  to  judgment.  This  they 
can  not  do  unless  the  answers  are  irreconcilable  with  the  gen- 
eral vendict. 

§  753.  Special  Verdicts— Motions  for  Judgment  on— A  special 
verdict  must  find  the  ultimate  or  inferential  facts,  and  not  mere 
matters  of  evidence  or  mere  evidentiary  facts,  so  that  where  the 
ultimate  facts  are  not  found  the  party  who  has  the  burden  will 
fail.1  If,  however,  the  ultimate  facts  are  stated  in  the  verdict 
the  presence  of  evidence,  or  of  evidentiary  facts,  will  not  vitiate 
it,  since  such  matters  may  be  disregarded  and  the  judgment  ren- 
dered on  the  facts.2     But  facts  must  appear  or  the  verdict  will 


485;  Rogers  v.  Lejden,  127  Ind.  50; 
Lockwood  v.  Rose,  125  Ind.  5SS,  25  N. 
E.  Rep.  710;  Johnson  v.  Miller  (low  a), 
,7  N.W.  Rep.  903,  S.  C.4S  N.  W.Rep. 
1081;  Smith  V.  McCarthy,  33  111.  App. 
17(1.  Jaquay  v.  Hartzell,  1  Ind.  App.  500; 
Shenners  p.West  Side,  etc.,  Co.,  7S  Wis. 
382,  47  N.  W.  Rep.  622.  An  answer  of 
"no  evidence"  is  not  sufficient,  as  a 
rule,  to  control  the  general  verdict. 
Chicago,  etc.,  Co.  r.Goyette,  32  111.  App. 
^74.  But  the  rule  is  not,  by  any  means, 
without  exception.  It  can  not  prevail 
where  the  absence  of  evidence  is  upon  a 
material  point  on  which  the  party  who 
obtains  the  general  verdict  lias  the 
burden,  and  can  not  succeed  with- 
out establishing  the  particular  fact. 
Where  the  answers  are  radically  con- 
tradictory, they  can  not  control  the 
general  verdict.  Dickey  v.  Shirk,  12S 
Ind.  27S,  28] ;  Graham  v.  Payne,  122  Ind. 
403;  Indianapolis,  etc.,  Co.  v.  Lewis, 
119  Ind.  21S;  Grand  Rapids,  etc.,  Co. 
v.  Ellison,  117  Ind.  234.  It  is  the  facts 
exhibited  in  the  answers  and  not  mere 
1    of  evidence  that  are  of  controlling 


importance.  Heiney  v.  Garretson,  1 
Ind.  App.  Ct.  548;  Louisville,  etc.,  Co. 
v.  Hubbard,  116  Ind.  193;  Schnurr  v. 
Stults,  119  Ind.  429;  Louisville,  etc.,  Co. 
v.  Wood,  113  Ind.  544;  Blacker  v. 
Slown,  114  Ind.  322.  See,  generally, 
Ward  v.  Busack,  46  Wis.  407;  Louis- 
ville, etc.,  Co.  v.  Cauley,  119  Ind.  142; 
Manning  v.  Gasharie,  27  Ind.  399; 
Evansville,  etc.,  Co.  v .  Gilmore,  1  Ind. 
App.  468. 

1  Indianapolis,  etc.,  Co.  v.  Bush,  101 
Ind.  582;  Vinton  v.  Baldwin,  95  Ind. 
433;  Chicago,  etc.,  Co.  v.  Burger,  124 
Ind.  275;  Louisville,  etc.,  Co.  v.  Fraw- 
ley,  no  Ind.  18;  Gordon  v.  Stockdale, 
89  Ind.  240;  Pittsburgh,  etc.,  Co.  v. 
Spencer,  98  Ind.  1S6;  Noblesville,  etc., 
Co.  v.  Leehr,  124  Ind.  79;  Dennis  v. 
Louisville, etc.,  Co.,  n6Ind.42;  Louis- 
ville, etc.,   Co.  v.  Green,  120  Ind.  367, 

375- 

2  Johnson  v.  Putnam,  95  Ind.  57;  Par- 
mater  v.  State,  102  Ind. 90;  Terre  Haute, 
etc.,  Co.  f.  Brunker,  128  Ind.  542;  Dixon 
v .  Dukes,  S5  Ind.  434;  Locke  v.  Mer- 
chants Nat.  Bank,  66  Ind.  353;  Kealing 


MOTIONS  FOR  JUDGMENT.  709 

not  support  a  judgment  of  recovery,  inasmuch  as  the  place  of 
facts  can  not  be  supplied  by  conclusions  of  law  or  matters  of 
evidence.  The  party  who  moves  for  judgment  must,  if  he  has 
the  burden,  be  able  to  show,  from  the  facts  stated  in  the  ver- 
dict, that  he  is  entitled  to  judgment  or  his  motion  will  fail.  It 
is  evident  that  the  party  who  has  the  burden  occupies  a  much 
more  disadvantageous  position  than  his  adversary.  The  former 
must  have  present  all  the  material  facts,  while  the  latter  will 
succeed  if  a  single  controlling  fact  is  absent  from  the  verdict. 
If  a  material  fact  is  absent  the  party  who  has  not  the  burden 
may  successfully  move  for  judgment.1  It  is  the  office  of  a  spe- 
cial verdict  to  find  and  state  the  facts,  referring  to  the  court  for 
decision  only  matters  of  law,  hence  it  follows  that  the  facts 
must  be  so  stated  that  all  that  remains  for  the  court  is  to  apply 
the  law.2 

§  754.  Effect  of  Moving  for  Judgment — Where  the  facts  are  ex- 
hibited in  the  special  verdict  a  party  who  believes  himself  en- 
titled to  judgment  asks  a  decision  when  he  appropriately  moves 
for  judgment,  and  if  his  motion  is  denied  he  may,  by  entering 
the  proper  exception,  make  the  denial  of  his  motion  available 
on  appeal.3     It  is  to  be  observed,  however,  that  by  moving  for 

v.  Van  Sickle,  74  Ind.  529,  S.  C.  39  Am.  433;  Conner  v.  Citizens    Rv.   Co..  105 

Rep.  101;   Woodfill  v.  Patton,  76  Ind.  Ind.  62;    Western   Union  Tel.  Co.   v. 

575;  Indiana,  etc.,  Co.  v.  Finnell,  116  Brown,   10S   Ind.   538;  Louisville,  etc., 

Ind.  414;  Louisville,  etc.,  Co.  v.  Green,  Co.  v.  Flannagan,  113  Ind.  488;   Wain- 

120  Ind.  367, 373;   Henderson  v.  Dickey,  right   v.   Burroughs,    1    Ind.   App.  393; 

76  Ind.  264.  Louisville,  etc.,  Co.  v.   Hart,  1 19  Ind. 

1  Korrady  v.  Lake  Shore,  etc.,  Co.  273;  Seward  v.  Jackson,  S  Cow.  406; 
(Ind.  Sup.  Ct.),  29  N.  E.  Rep.  1069;  Hill  v.  Covell,  1  N.  V.  ^22;  Langley 
Lake  Shore,  etc.,  Co.  v.  Pinchin,  112  v.  Warner,  3  N.  Y.  327;  Eisemann  v. 
Ind.  592,  597;  Rice  v.  City  of  Evans-  Swan,  6  Bosw.  66S;  Hallet  v.  Jenks,  1 
ville,  10S  Ind.  7,  11.  Nothing  can  be  Cuius  Cases,  43;  Thayer  V.  S< 
added  to  a  special  verdict  by  intend-  etc.,  21)  Pa.  St.  60;  Kuhlman  r.  Med- 
ment.  Lake  Shore,  etc.,  Co.  v.  Stupak,  linka,  29  Texas,  385;  Williams  v.  Wil- 
125  Ind.  210.  lis.  7  Abbott's  Pr.  K 

2  Goldsby  v.  Robertson,  1  Blackf.  247;  3  In  Austin  v.  Earhart,  88  Ind.  l8a, 
Pittsburgh,  etc.,  Co.  v.  Spencer, 98  Ind.  the  court  said:  "  There  is  no  difficulty 
1S6;  Dixon  v.  Dukes,  85  Ind.  434;  Lou-  in  presenting  questions  upon  the  rulings 
isville,  etc.,  Co.  v.  Balch,  105  Ind  93;  of  the  court  on  special  verdicts.  Itmay 
Pittsburgh,  etc.,  Co.  v.  Adams,  105  Ind.  be  done  in  two  ways,  it'  not  more, 
151;    Buchanan    v.    Milligan,   to8   Ind.  namely,  by  moving  for  judgment    and 


710  ERROR   IN  JUDICIAL   PROCEEDINGS. 

judgment  he  does  not  always  accomplish  the  same  purpose  that 
lie  would  do  by  moving  that  a  venire  dc  novo  be  awarded.  The 
latter  motion  directs  attention  to  defects  or  imperfections  in  the 
special  verdict,  while  the  other  asks  judgment  because  the  facts 
as  they  appear  entitle  him  to  the  judgment.  Where  the  moving 
party  is  not  the  one  having  the  burden,  it  may,  upon  the  princi- 
ple stated  in  a  preceding  paragraph,  be  the  absence  of  facts 
that  entitles  him  to  judgment. 

§  755.  Distinct  Causes  of  Action — Where  there  are  two  distinct 
causes  of  action,  the  party  entitled  to  a  recovery  upon  the  facts 
stated  in  the  special  verdict  in  one  cause  of  action  may  success- 
fully move  for  judgment  as  to  that  cause  of  action.1  It  does  not 
follow  that  because  a  part)'  does  not  succeed  as  to  all  the  causes 
of  action  on  which  he  declares  he  fails  as  to  the  cause  of  action 
on  which  the  facts  stated  in  the  verdict  entitle  him  to  judgment. 
It  is  the  duty  of  the  court,  when  properly  requested,  to  render 
judgment  according  to  the  verdict,  since  it  is  established  law 
that  the  judgment  must  follow  the  verdict.2 

§  756.   Motion  essential  to  save  Questions  upon  Special  Verdicts — 

The  appropriate  motion  must,  as  a  general  rule,  be  made  by 
one  who  deems  himself  entitled  to  judgment  in  the  trial  court 
in  order  to  save  a  question  as  to  the  propriety  of  entering  judg- 
ment on  a  special  verdict.3     A  party  who  fails  to  present  the 

properly   reserving   an   exception,  and  l  Johnson   v.    Culver,   116    Ind.   278; 

by  excepting  to  the  adverse  party's  mo-  Louisville,  etc.,  Co.  V.  Green,  120  Ind. 

tion   for  judgment."     To  substantially  367,  363. 

tin-  s;vme  effect  are  the  cases  of  Dixon  v.  *  It  is  to  be  understood,   of  course, 

Dukes,  85  Ind.  434;  Johnson  v  Culver,  that    the   facts   stated   are   within    the 

116  Ind.  278,   280;  Louisville,  etc.,  Co.  issues,  for  facts  wholly  outside  of  the 

v.  Green,  120  Ind.  367,  373.     In  the  case  issues  are  utterly  insufficient  to  support 

last  named  it  was  said,  in  speaking  of  a  a  judgment.     Facts  beyond  the  issues 

motion  for  judgment  on  a  special  ver-  are  to  be  disregarded, 

diet:   "  This  was  a  proper  motion.    The  s  If  the   one    party   moves    for  judg- 

two  causes  of  action  were  clearly  dis-  ment  and  succeeds,  an  exception  by  the 

tinct,  and  if  the  facts  found  in  the  spe-  adverse  party  will  save  the  question  in 

cial  verdict  entitled   the  appellant  to  a  some  cases,  but  not  in  all,  so  that  the 

judgment  upon  the  one  cause  of  action  safe  plan  for  the  party  who  desires  to 

it    should   have    been    sustained."     The  make  a  question  available  on  appeal  is 

judgment  was  reversed  for  the  error  in  to  himself  move  for  judgment. 
denying  the  motion  for  judgment. 


MOTH  >NS   FOR  Jl   DGMENT.  71  1 

question  in  that  court  has  no  question  to  present  to  the  appel- 
late tribunal  for  review.  A  question  not  made  below  as  to  the 
sufficiency  of  a  verdict,  or  as  to  the  propriety  of  pronouncing 
judgment  upon  it  can  not  be  made  on  appeal  without  violating 
settled  principles.  The  only  doubt  that  can  arise  is  as  to  the 
appropriate  mode  of  presenting  such  questions.1  In  the  case- 
referred  to  in  the  note  there  is  no  departure  from  the  settled  rule 
that  a  party  who  has  the  burden  can  not  recover  unless  the 
facts  essential  to  a  recovery  are  found,  but,  on  the  contrary, 
that  rule  is  expressly  asserted.  Its  application  is  denied  be- 
cause the  verdict  was  imperfect  and  the  party  did  not  pursue 
the  proper  course.  He  sought  to  secure  judgment  where  he 
was,  at  most,  entitled  only  to  a  venire  de  novo.  If  he  had  pur- 
sued the  proper  course,  or  if  no  facts  had  been  stated  in  the 
verdict  a  very  different  question  would  have  been  presented. 
The  case  of  which  we  are  speaking  strikingly  illustrates  the 
difference  between  a  defective  finding  and  the  absence  of  facts. 
It  does  not  assert  that  mere  conclusions  of  law  constitute  facts, 
but  that  an  imperfect  statement  does  not  authorize  a  party  to 
treat  the  statement  as  a  nullity,  although  the  defect  may  be 
such  as  to  entitle  him  to  have  another  jury  called.  It  is  well 
settled  that  where  the  appropriate  motion  or  objection  is  not  in- 
terposed in  the   trial  court,  mere  imperfections  or  defects  in  a 

1  In  the  case  of  Cook  t>.  McNaughton,  now  trial,  but  seeks  to  treat  a  general 
i2SInd.  410,  the  court  declared  the  rule  finding  on  one  issue  as  a  nullity,  lie 
to  be  that:  "  A  special  verdict  which  insists  that  the  finding  in  question  i^  a 
does  not  find  the  facts  in  detail  can  not  statement  of  a  mere  conclusion  of  law, 
be  supported  as  such,  it  must  be  set  and  therein  we  think  consists  his  error, 
aside  and  a  new  trial  awarded."  But  it  The  doctrine  that  a  general  verdict  for 
was  held  that  as  the  verdict  was  simply  a  plaintiff  embraces  a  finding  in  his 
imperfect  in  finding  upon  one  issue  gen-  favor  of  all  the  material  allegations  of 
erally  when  it  should  have  found  the  the  complaint  is  elementary.  The  de- 
facts  specially,  the  failure  of  the  appel-  feet  in  the  special  verdict  under  con- 
hint :  to  assail  the  verdict  in  the  appro-  sideration  does  not  consist  in  a  failure 
priate  mode  precluded  him  from  sue-  to  find  all  the  facts  necessary  to  author- 
cessfully  challenging  the  judgment  on  ize  a  judgmenl  for  the  plaintiff,  but  it 
appeal.  It  was  said  by  the  court :  "In  consists  in  finding  the  facts  to  one  issue 
this  case  the  special  verdict  was  re-  generally  and  not  specially.  Astheap- 
ceived  without  objection.  No  effort  pellee  has  nol  sought  to  have  the  ver- 
was  made  to  have  the  jury  correct  it;  diet  set  aside  for  this  defect,  it  is  our 
no  motion  was  made  for  a  venire  de  duty  to  give  it  force,  if  that  can  be 
//<>:<>.      The   appellant    doe--    not    seek  a  done." 


712  ERROR   IN  JUDICIAL  PROCEEDINGS. 

verdict  can  not  be  made  available  on  appeal  for  the  reversal  of 

the  judgment.1 

§  757.   Special  Finding  —  Characteristics  and   Incidents  —  The 

finding  of  facts  by  the  court  is  much  the  same  as  the  special 
verdict  of  a  jury,  especially  where  the  finding  of  the  facts  is 
not  supplemented,  as  it  is  required  to  be  in  this  State,  by  the 
conclusions  of  the  court  as  to  the  matters  of  law.2  Where  con- 
clusions of  law  are  added,  then  the  whole  case — law  and  facts 
— is  presented  to  the  appellate  tribunal  upon  the  finding.  But 
by  severing  the  conclusions  of  law  from  the  statement  of  facts, 
as  may  be  done  for  some  purposes,  the  finding  of  the  court  is, 
in  many  respects,  governed  by  the  same  rules  as  those  which 
apply  to  special  verdicts  rendered  by  juries.  If  the  finding  of 
facts  is  defective  or  imperfect  it  is  to  be  challenged  in  substan- 
tially the  same  manner  as  a  special  verdict.  If  the  finding  of 
facts  is  silent  as  to  a  material  point,  as  to  that  point  it  is  deemed 
to  be  adverse  to  the  party  upon  whom  the  burden  of  proof 
rests.  This  conclusion  is  asserted  in  a  great  number  of  cases. s 
If  facts  are  not  found  which  were  established  by  the  evidence 
the  proper  remedy  is  a  motion  for  a  new  trial.4     It  is  one  thing 

1  Bohr  v.  Neuenschwander,   120  Ind.  v.  Norris,  128  Ind.  377;     Kehr  v.  Hall, 

449.     In   the   case   cited    it   was   said:  117  Ind.  405;    Fletcher  v.  Martin,  126 

"  But  the  question  as  to  the  defect  in  the  Ind.  55;     Citizens  Bank  v.  Bolen.   121 

verdict  is  not  properly  in  the  record,  and  Ind.  301;     Nitche  v.  Earl,  88  Ind.  375; 

therefore   the  appellant  can    not  have  Cincinnati,  etc.,  Co.  v.  Gaines,  104  Ind. 

the    record    corrected    by   this    appeal.  526;     Mitchell    v.  Colglazier,    106  Ind. 

He  did  not  move  in  the  court  below  to  464;    Meeker  v.  Shanks,  112   Ind.  207; 

set  aside  the  verdict.     Nor  did  he  ask  Spraker    v.  Armstrong.     79  Ind.    ;;;; 

that  a    venire  de    novo   be    awarded."  Stumph  v.  Bauer.  76  Ind.  157;   Sinker- 

The  court    cited    Moore    v.    Reed,    1  Davis  Co.  v.  Green,  1 13  Ind.  264;  Tal- 

Blackf.  177;  Tardy  v.  Howard,  12  Ind.  burtt  v.  Berkshire,  etc.,  Co.,  80  Ind.  434; 

404;  Anderson  v.  Donnell,  66  Ind.  150.  Montmorency,  etc.,  Co.  v.  Rock,  41  Ind. 

-  Where   no   conclusions  of  law   are  263;   Robinson  v.  Snyder,  74  Ind.  no. 
stated  it  is  held  that  the  finding  is  to  be         4  First  National   Bank  v.  Carter,  89 

treated   as   a  general   one.      Powers  v-  Ind.  317;    Tarkington    v.    Purvis.    128 

Fletcher,  84  Ind.  154.  Ind.  1S2;    Deeter  v.   Sellers.  102    Ind. 

3  Yerkes  v.  Sabin,  97  Ind.  141;   Krug  458;   Hamilton  v.  Byram,  122  Ind.  283; 

v.  Davis,  101  Ind.  75;  Ayers  v.  A.dams,  Bowen  v.  Swander,  121  Ind.  164;  Louis- 

82  Ind.  109;     Hunt  v.  Blanton,  89  Ind.  ville,  etc.,  Co.  v.  Hart.  1 19  Ind.  273,  276; 

3S;  Dodge  v.  Pope,  93  Ind.  4S0;  Quick  Watts  v.  Julian,  122  Ind.  124;  Crawford 

v.    Brenner,    101    Ind.    230;     Stone    v.  v.  Powell,  1 01  Ind.  42 1 ;    Knox  v.  Trafa- 

Brown,  116  Ind.  78;  Town  of  Freedom  let,  94  Ind.  346. 


MOTIONS  FOR  Jl   DGMEN  I' 


713 


to  assail  the  finding  of  tarts  and  quite  another  to  assail  the 
conclusions  of  law,  as  will  be  shown  in  the  paragraphs  that 
follow.  The  finding  of  facts  can  not  be  successfully  attacked 
by  a  motion  to  strike  out  where  the  ground  is  that  the  finding 
is  contrary  to  the  evidence.1  The  evidentiary  facts  are  not  to 
be  stated,  but  the  inferential  or  ultimate  facts  must  be  properly 
stated.1'  The  presumption,  in  the  absence  of  a  countervailing 
showing,  is  that  all  the  material  facts  proved  are  stated  in  the 
special  finding.3  Facts  not  mere  conclusions  should  be  stated.4 
The  finding  must  state  the  facts  with  reasonable  certainty.5 
We  have  given  enough  of  the  characteristics  and  incidents 
of  a  special  finding  to  show  its  close  resemblance  to  a  special 
verdict  and  prepare  the  way  for  a  consideration  of  the  doctrine 
of  the  applicability  of  motions  for  a  venire  de  novo  to  special 
findings,  and  that  is  all  we  care  to  do  here,  for  in  a  former 
chapter  we  considered  the  subject  of  requests  for  special  find- 


1  Tarkington  v.  Purvis,  12S  Ind.  1S2; 
Sharp  v.  Malia,  124  Ind.  407.  See 
Clark  v.  State,  125  Ind.  1;  Hays  v. 
Hostetter,  125  Ind.  60. 

2  Farmers,  etc.,  Co.  v.  Canada,  etc., 
Co.,  127  Ind.  250,  270;  Cicero  Tp.  v. 
Picken,  122  Ind.  260;  Davis  v.  Frank- 
lin, 25  Ind.  407;  Kealing  v.  Van  Sickle, 
74  Ind.  529;  Whitcomb  v.  Smith,  123 
Ind.  329;  Kirkpatrick  v.  Reeves,  121 
Ind.  280;  Wilson  v.  Campbell,  119  Ind. 
286;  Phelps  v.  Smith,  116  Ind.  3S7; 
Bartholomew  v.  Pierson,  112  Ind.  430; 
Stix  v.  Sadler,  109  Ind.  254;  Elston  v. 
Castor,  101  Ind.  426;  Perkins  v.  Hay- 
ward,  124  Ind.  445;  Zigler  v.  Menges, 
121  Ind.  99;  Smith  v.  Goodwin,  86  End. 
300;  Blizzard  v.  Riley,  83  Ind.  300; 
Hagaman  v.  Moore.  S4  Ind.  4.96;  Col 
trell  V.  Nixon,  109  Ind.  37S:  Caldwell 
v.  Boyd,  109  Ind.  447;  People  v.  Reed, 
Si  Cal.  70.  22  Pac.  Rep.  +74;  Tyler  v. 
Waddingham,  58  Conn.  375.  8  Law. 
Anno.  Rep.  657;  Smith  v.  Mohn,  87 
Cal.  48,).  25  Pac.  Rep.  696. 

3  McLaughlin  v.  Ward.  77   Ind.  383; 


I  lavs  v.  Hostetter,  125  Ind.  60,  65. 
The  doctrine  of  the  cases  must  neces- 
sarilv  be  correct  under  the  rule  that 
where  facts  established  by  the  evidence 
are  not  stated  the  remedy  is  by  a  mo- 
tion for  a  new  trial.  As  the  settled 
rule  is  that  only  the  facts  proved  need 
be  stated  it  results  that,  until  the  con- 
trarv  appears  from  the  evidence,  it  must 
be  assumed  that  all  the  facts  established 
by  the  evidence  are  contained  in  the 
finding.  It  is,  therefore,  incumbent 
upon  a  party  who  assails  the  finding 
upon  the  ground  that  it  does  not  state 
the  facts  proved,  to  make  his  assertion 
good  bv  the  evidence. 

*  A.twood  v.  Welton,  57  Conn.  514, 
iS  Atl.  Rep.  322;  Ward  v.  Clay,  82 
Cal.  502.  511.  23  Pac.  Rep.  50;  Braden  v. 
Lemmon,  127  Ind.  <j.  26  N.  E.  Rep.  476. 
Bui  conclusions  where  facts  are  found 
may  be  eliminated.  Faurote  0.  -State, 
123  Ind.  6,  23  N.  E.  Rep.  971. 

■•  Estill  V.  Irvine.  10  Mont.  500.  j6 
Pac.  Rep.  1005;  Cohn  0.  Wright,  S9 
Cal.  36,  26  Pac   Rep.  643. 


714  ERROR   IN  JUDICIAL   PROCEEDINGS. 

ings  and  shall  consider  the  subject  of  excepting  to  the  conclus- 
ions of  law  in  a  subsequent  chapter  which  treats  of  exceptions. 

§  758.  The  Motion  for  a  Venire  de  novo— The  General  Doctrine— 
A;  common  law  ;i  venire  facias  de  novo  "is  grantable  when  the 
verdict,  whether  general  or  special,  is  imperfect  by  reason  of 
some  uncertainty,  or  ambiguity,  or  by  finding  less  than  the 
whole  matter  put  in  issue,  or  by  not  assessing  damages."  '  It 
was  essential  at  common  law  that  the  verdict  should  respond 
to  the  whole  issue.  This  is  an  important  element,  and  in  dis- 
pensing with  it,  as  our  decisions  have  done,  it  may  well  be 
doubted  whether  a  matter  important  to  the  due  and  effective 
administration  of  justice  has  not  been  cast  aside  without  just 
reason.  Compelling  a  jury  to  respond  to  all  the  issues  prevents 
them  from  evading  their  duty  and  secures  a  full  decision  of  the 
whole  controversy.  There  is,  therefore,  a  solid  foundation  for 
the  common  law  rule.  It  is  difficult,  we  may  add,  to  conceive 
how  the  court  could  consistently  incorporate  the  common  law 
rule  into  our  svstem  (for  it  was  not  incorporated  by  legislation), 
and  vet  leave  out  an  essential  and  commendable  element. 

§  759.  Venire  de  novo— The  Indiana  Rule— Where  a  special 
verdict  is  silent  upon  a  material  point  it  is  regarded  as  against 
the  party  having  the  burden  upon  that  point.2  As  we  have 
seen,  this  is  true  of  a  special  finding.  It  seems  necessarily  to 
result  from  this  established  rule  that  a  failure  to  find  upon  all 
the  issues  is  not  a  ground  upon  which  a  venire  de  novo  can  be 
successfullv  claimed.  So  it  has  been  finally  determined,  al- 
though there  has  been  much  confusion  and  conflict.3     The  rem- 

1  2  Tidd's  Pr.  9:2:  Harden  v.  Fisher,  72  Ind.  42:  Pitzer  :\  Indianapolis,  etc., 
1  Wheat.  300;  Fowler.  Alexandria.  11  Co.,  So  Ind.  569;  Gray  V.  Taylor  (Ind. 
Wheat.  320;   United  States  v.  Hawkins.     App.),  2S  X.  E.  Rep.  220. 

10  Pet.  12;;   P>ro\vn  v.  Hillegas,  2    Hill  s  The   rule  as  it   exists  in  this   State 

V  Y.).  |t-;    Whiter.  Bailey,  14  Conn,  was  fully  stated  in  the  ease  of  Ex  parte 

271:  Grice  v.  Ferguson,  1   Stew.  |  Ala.)  Walls.  73  Ind.  95.  no.    In  that  case  the 

36;   Middletown  v.  (^lu^lcy,  -  Halst.(N.  court,  in  answering  the  point  made  by 

j.)  n;:  counsel   that  the   finding  did    not    em- 

2  Waymire  v.  Lank,  121  Ind.  1;  Jones  brace  all  the  issiu-s.  said:  "  The  second 
r.  Baird,  76  Ind.  164:  Henderson  v.  proposition  can  not  he  maintained.  In 
Dickey,  76  Ind.  264;   Stropes  v.  Board,  the  case  of  Graham  r.  State.  66   Ind. 


MOTIONS  FOR  JUDGMENT 


715 


edy  where  the  facts  established  by  the  evidence  are  not  found 
is  by  a  motion  for  a  new  trial,  as  in  the  case  of  a  special  find- 
ing. But  while  our  rule  differs  from  the  common  law  rule  in 
the  respect  indicated  it  is  essentially  the  same  in  all  other  ma- 
terial respects,  for  much  as  the  oflice  of  a  special  verdict  is  re- 
stricted by  the  limitation  placed  upon  it  by  the  doctrine  that 
its  office  is  not  to  find  upon  all   the  issues,1  but  onlv  to  find  and 

386,  the  office  of  a  special  verdict  or  proof  pertinent  to  any  issue,  on  which 
a  special  finding  of  facts  was  carefully  the  court  ought  t<>  have  found  I 
considered,  and  it  was  there  determined  the  remedy  is  by  a  motion  for  a  new 
that  the  tarts  to  be  stated  in  such  trial."  The  decisions  subsequent  to  the 
finding  or  verdict  were  those  which  oik-  from  which  we  have  quoted  have 
had  been  proved  on  the  trial  and  none  not  been  harmonious,  for  many  of  them 
other;  that  if  there  were  issues  in  a  have  yielded  to  the  influence  of  the 
case  upon  which  no  evidence  was  of-  common  law  doctrine,  lint  they  can  not 
fered,  no  finding  should  be  made  in  be  supported  consistently  with  the  es- 
reference  thereto,  and  that  the  issues  tablished  rule  that  silence  operates 
concerning  which  no  facts  were  found  against  the  party  upon  whom  the  bur- 
should  be  regarded  as  not  proved  by  den  rests.  It  would  have  been  more 
the  party  on  whom  was  the  burden  of  consistent  to  have  adhered  to  the  com- 
the  issue  or  issues.  This  case  has  been  mon  lawr  rule  from  which  the  doctrine 
approved  and  followed  in  several  cases  of  a  motion  for  a  ventre  de  novo  was 
decided  at  this  term.  Martin  :•.  Cauble,  taken, — fjpr  our  code  makes  no  pro- 
72  Ind.  67;  Vannoy  v.  Duprez,  72  Ind.  vision  for  such  a  motion, — but  it  is  now 
26;  Stropes  v.  Board,  72  Ind.  42.  There  too  late  to  go  back  to  the  common  law- 
was,  before  the  decision  of  the  case  of  rule,  inasmuch  as  to  do  so  would  re- 
Graham  v.  State,  supra,  some  con-  quire  the  overriding  of  scores  of  ca-es. 
fusion  on  this  subject.  See  Schmitz  v.  Nothing  can  be  justly  done  towards 
Laufertv,  29  Ind.  400;  Cruzan  v.  changing  the  rule,  for  a  change  would 
Smith,  41  Ind.  2S8;  Dehority  :.  Nelson,  inevitably. produce  great  injustice.  A 
56  [nd.  414;  Whitworth  v.  Ballard,  56  change  would  require  the  overruling  of 
Ind.  279;  Anderson  :•.  Donnell,  66  a  great  number  of  cases,  for  it  would  in- 
Ind.  150,  and  the  cases  referred  to.  volve  the  cases  decided  upon  special 
But  these  cases  should  be  deemed  modi-  findings,  as  well  as  those  decided  upon 
fied  or  overruled,  so  far  as  inconsistent  special  verdicts. 

with  the  doctrine  now  settled,  that  it  is  '  In  the  case  of  Board  p.  Pearson,  120 

not   the  office   of  a    special    verdict   or  Ind.   426,    430,  it  was    said:     "There  is 

finding    to   find    specially   upon   all    the  no  imperfection  in    the  verdict,  for  suf- 

issues,  but  onjy  to  find  the  facts  proven  ficient    facts    are    stated  to  enable   the 

within  the  issues.     The  inevitable  cor-  court  to  pronounce   judgment,  and   un- 

ollary  proposition  is  that,  if  the  special  der  the  rule  which  prevails  in  this  State, 

finding  or  verdict   is  silent  in  reference  the   failure  to  find  upon  all  the   i- 

to  any  issue  or  facts,  such  silence  is  not  does  not  entitle  a  party  to  a   venit 

an    omission    apparent    on     the     record  novo.     Wilson  :•.  Hamilton,  7,  Ind.  71. 

which    can   be  ground   for   granting  a  Jones    p,   Baird,  7''    Ind.  [64;   Glai 

venire  de  novo      If  in   fact    there   was  City    of    South  Bend,    106    [nd.   305.    1 


716 


ERROR   IN  JUDICIAL  PROCEEDINGS. 


state  all  the  facts  established  by  the  evidence,  a  motion  for  a 
venire  de  novo  is  often  the  appropriate  mode  of  questioning  the 
sufficiency  of  a  special  verdict,  for  there  are  questions  that  can 
not  be  appropriately  presented  by  any  other  motion.  While  a 
motion  for  a  new  trial  is,  under  the  doctrine  established  by  our 
cases,  the  appropriate  mode  of  presenting  the  question  as  to 
whether  the  facts  are  correctly  found,  still  that  mode  is  not  al- 
ways the  proper  one,  inasmuch  as  defects  and  imperfections  in 
the  verdict  can  only  be  reached  by  a  motion  for  a  venire  de 
novo.  It  has  been  held  that  a  motion  for  a  judgment  on  the 
verdict  is  the  appropriate  remedy,1  and  this  is  no  doubt  true  where 
there  is  an  absence  of  facts  and  the  party  having  the  burden  is 
the  moving  party,  but  this  doctrine  can  not  apply  to  imperfec- 

1  In  the  case  of  Louisville,  etc.,  Co.  v. 
Hart,  i  iglnd.  273,277,  it  was  said:  "The 
court  committed  no  error  in  overruling 


Works  Pr.  §  971,  and  cases  cited.  This 
has  been  the  rule  since  the  decision  in 
Graham  v.  State,  66  Ind.  386,  although 
the  earlier  cases  declared  a  different 
rule.     Quill  v.  Gallivan,   108  Ind.  2^, 


the  motion  for  a  venire  de  novo.     The 
verdict  was  not  defective  or  uncertain, 


and  cases  cited;   Bartley  v.  Phillips,  114  but  is  clear  and  explicit  as  to  the  facts 

Ind.  189;  Indiana,  etc.,  Co.  v.  Finnell,  found  by  the  jury.     If  itdoes  not  cover 

116  Ind.  414.     In  the  case  of  Glantz  v.  the  issues  in  the  case,  or  so  far  cover 

City  of  South  Bend,  supra,  the  court  them   as   to   entitle   the  appellees   to  a 

referred  to  Bosseker  v.  Cramer,  18  Ind.  judgment,  the  question  is  not  presented 

44,    and    some    other    cases,    and    after  by  a  motion  for   a  venire  de  novo,  but 

showing  that  the  doctrine  of  those  cases  must  be  presented  as  a  reason  in  the 


had  been  denied  in  Graham  v.  State, 
supra,  and  that  the  later  cases  approved 
the  doctrine  of  that  case,  declared  in 
effect  that  the  rule  as  stated  in  Graham 


motion  for  a  new  trial,  or  by  the  mo- 
tion for  a  motion  judgment  upon  the 
judgment.  The  question  is  properly 
presented  in  both  ways."     We  think  it 


v.  State,  supra,  must  be  considered  as     correct  to  say  that  questions  on  a  spe- 
established.    The  effect  of  the  decisions     cial  verdict  may,  as  the  case  from  which 


has  been  to  overrule  Bosseker  v. Cramer, 
supra."  Other  cases  assert  the  doc- 
trine of  Graham  v.  State,  supra;  Evans- 
villc,  etc.,  Co.  v.  Taft  (Ind.  App.  Ct.), 
28  N.  E.  Rep.  443;  Citizens'  Bank  v. 
Bolen,  121  Ind.  301;  Wilson  v.  Hamil- 
ton, 75  Ind.  71;  Louisville,  etc.,  Co.  v. 
Buck,  116  Ind.  566;  Louisville,  etc.,  Co. 
v.  Hart,  119  Ind.  273,  21  N.  E.  Rep. 
7^3;  Bowen  v.  Swander,  121  Ind.  164; 
Mitchell  v.  Friedley,  126  Ind.  545,  548; 
Trittipo  v.   Morgan,   99  Ind.   269.271; 


we  have  quoted  and  other  cases  hold, 
be  presented  by  a  motion  for  judgment 
on  the  verdict,  but  we  think  that  such 
a  motion  does  not  serve  the  purpose  of 
a  motion  for  a  new  trial.  The  one  mo- 
tion is  proper  where  there  is  no  ques- 
tion made  as  to  the  correctness  of  the 
finding  and  statement  of  the  facts, 
whereas  the  other  motion,  that  for  a 
new  trial,  is,  under  our  system,  the  ap- 
propriate motion  in  cases  where  the 
moving  party  desires   to  challenge  the 


Citv  of  Lafayette  v.  Allen,  Si  Ind.  166,     finding  upon  the  ground  that  it  is  con- 
169.  trarv  to  the  evidence. 


MOTIONS  FOR  JUDGMENT.  717 

tions  or  defects  in  form.  Where  the  defect  is  in  the  form  or 
mode  of  stating  the  facts  a  very  different  method  of  procedure 
is,  as  we  have  indicated,  essential  to  present  and  save  the  ques- 
tion of  the  sufficiency  of  a  verdict  for  consideration  on  appeal. 

§  760.  The  Motion  for  a  Venire  de  novo  as  applied  to  a  Special 
Finding — It  seems  almost  a  perversion  of  language  to  apply  the 
term  "  motion  for  a  venire  de  novo  "  to  a  motion  directed  against 
a  finding  made  "by  a  judge,  but  usage  warrants  its  employment 
as  addressed  to  such  a  finding.  The  resemblance  in  essential 
features  between  a  special  finding  and  a  special  verdict  is  so 
close  and  strong  that  it  is  convenient  to  use  a  common  term  as 
applicable  to  both  the  finding  of  the  court  and  the  verdict  of  a 
jury.  It  is,  at  all  events,  quite  common  in  this  jurisdiction  to 
apply  the  words  "  motion  for  a  venire  de  novo"  to  the  motion 
addressed  to  the  special  finding  of  a  court.1  What  is  said  re- 
specting the  motion  for  a  venire  de  novo  in  the  paragraphs  that 
follow  is  to  be  taken  as  applicable  to  the  motion  directed  against 
special  findings  as  well  as  to  the  motion  directed  against  special 
verdicts. 

§  761.  Office  of  the  Motion  for  a  Venire  de  novo— While  the  sys- 
tem established  by  our  decisions  rejects  the  common  law  re- 
quirement that  the  verdict  must  find  upon  the  whole  matter  in 
issue  it  still  retains  many  of  the  essential  features  of  the  old 
system.  The  object  accomplished  by  a  successful  motion  for  a 
venire  de  novo  is  essentially  the  same  under  our  system  as  un- 
der that  of  the  common  law  ;  the  result  under  both  systems  is, 
in  effect,  the  same  as  that  attained  by  a  successful  motion  for  a 

1  In  Johnson?.  Hosford,  no  Ind.  572,  lias  a  place  in  our  legal  terminology 
574,  the  court  said:  "The  appellee's  and  should  not  now  be  cast  aside.  Its 
counsel  are  right  in  criticising  the  use  meaning  is  well  known,  and  its  appli- 
of  the  phrase  'motion  for  a  venire  de  cation  is  often  made  to  the  findings  o\ 
novo'  as  applied  to  the  special  finding  the  courts  as  well  as  to  the  verdict-  ot 
of  a  court;  but  the  phrase  is  a  conveni-  juries.  We,  however,  do  not  think  that 
ent  one,  commendable  on  account  of  there  are  any  defects  in  the  special  find- 
its  brevity,  its  place  not  easily  supplied,  ing  that  a  motion  for  a  venire  ilc  novo 
and  its  employment  is  justified  by  gen-  will  reach,  for  it  is  not  uncertain  or 
eral  use,  so  that  while  its  use  i-  not  de-  ambiguous;  on  the  contrary,  the  facts 
fensible  on  philological  grounds,  still  it  are  full;  and  clearly  stated." 


'18 


ERROR   IN  JUDICIAL   PROCEEDINGS. 


new  trial.1  The  difference  is  in  the  mode  of  procedure,  not  in 
the  end  reached.  A  motion  for  a  venire  de  novo  reached  a  de- 
tect in  a  verdict  which  fails  to  assess  damages  under  the  com- 
mon law  rule2  and  so  it  does  under  our  system.3  Where,  how- 
ever, the  amount  is  so  fully  stated  that  only  a  computation  of 
interest  is  required  to  ascertain  the  damages  awarded,  amotion 
for  a  venire  de  novo  will  not  prevail.1  If  mere  matters  of  evi- 
dence and  not  facts  are  stated  in  a  special  finding  a  venire  de 
novo  has  been  held  to  be  the  appropriate  remedy.5  While  it  is 
true  that  objections  to  the  form  of  a  verdict  or  special  finding 
must  be  presented  to  the  trial  court  in  the  first  instance,  and 
that  a  motion  for  a  venire  de  novo  is  the  appropriate  mode  of 
presenting  the  objection,6  it  is  also  true  that  the  motion  will 
fail  if  the  verdict,  although  defective,  is  sufficient  to  support  a 
judgment.7 

§  762.   Time  of  Filing  the  Motion — The  rule  is  that  the  motion 
for  a  venire  de  novo  must  be  filed  before  judgment.     The  filing 


1  Peed  v.  Brenneman,  72  Ind.  2S8. 

2  Kvnaston  v.  Mayor,  etc.,  2  Stra. 
1051;  Whitesides  v.  Russell,  8  Watts. 
&S-44.47;  Millers.  I  lower,  2  Rawle, 
53;  Neal  v.  Mills,  5  Blackf.  20S. 

3  Brickley  v.  Weghorn,  71  Ind.  497; 
Hershman  v.  Ilershman,  63  Ind.  451; 
Ridenour  v.  Miller,  83  Ind.  208;  Ever- 
road  v.  Gabbert,  S3  Ind.  489;  Wain- 
right  v.  Burrows,  1  Ind.  App.  393. 

4  Knight  v.  Fisher,  15  Col.  176,  25 
Pac.  Rep.  7S;  Clapp  v.  Martin,  33  111. 
App.  43S;  Buchanan  z\  Townsend,  So 
Texas,  534,  16  S.  W.  Rep.  315;  Gaff  v. 
Hutchinson,  3S  Ind.  341;  Thames,  etc., 
Co.  v.  Beville,  100  Ind.  309.  Where  no 
ilata  are  given  in  the  verdict  for  the 
computation  judgment  can  only  be 
rendered  for  the  sum  stated  in  the  ver- 
dict. Dawson  v.  Shirk,  102  Ind.  1S4. 
See  Moriarty  v.  McDevitt,  46  Minn. 
136,  4S  N.  W.  Rep.  6S4. 

5  Parker  v.  Hubble,  75  Ind.  580; 
Smith  v.  Goodwin,  S6  Ind.  300;    Keal- 


ing  v.   Van  Sickle,   74  Ind.   529.     See 
Jarvis  v.  Banta,  83  Ind.  52S. 

6  Bonewitz  v.  Wygant,  .75  Ind.  41; 
Cottrell  v.  Nixon,  109  Ind.  378;  Cin- 
cinnati, etc.,  Co.  v.  Washburn,  25  Ind. 
259;  Chaplin  v.  Sullivan,  128  Ind.  50; 
Roberts  v.  Lindley,  121  Ind.  56;  Nic- 
odemus  v.  Simons,  121  Ind.  564;  Smith 
v .  Jeffries,  25  Ind.  376;  Leeds  v.  Boyer, 
59  Ind.  289;  Trout  v.  West,  29  Ind.  51; 
Carver  v.  Carver,  83  Ind.  368;  Cincin- 
nati, etc.,  Co.  v.  Clifford,  113  Ind.  460; 
Marcus  v.  State,  26  Ind.  101;  Locke  v. 
Merchants  Nat.  Bank,  66  Ind.  353. 

7  State  r\  Funck,  17  Iowa,  365;  Ward 
v.  Thompson,  4S  Iowa,  5S8;  Wiggins 
v.  City  of  Chicago,  6S  III.  372;  Lincoln 
v.  Hapgood,  11  Mass.  350,  358;  Merrick 
v.  State,  63  Ind.  327;  Moore  v.  Read.  1 
Blackf.  177;  Boxley  v.  Collins,  4  Blackf. 
320;  Ridenour  v.  Beekman,  6S  Ind.  236; 
Lentz  v.  Martin,  75  Ind.  228;  Trout  v. 
West,  21)  Ind.  51;  Bonewitz  v.  Wygant, 
75  Ind.  41;  Peters  v;  Banta,  120  Ind. 
416;  Berghoff?;.  McDonald,  87  Ind.  549. 


MOTIONS  FOR  JUDGMENT.  719 

of  the  motion  after  judgment  will  not  avail.1  As  the  motion  is 
an  independent  one  it  is  necessary  to  reserve  the  proper  excep- 
tion at  the  time  the  ruling  denying  it  is  made.2 

§  763.  Requisites  of  the  Motion — It  seems  that  good  practice 
requires  that  the  motion  should  specify  with  reasonable  cer- 
tainty the  grounds  upon  which  it  is  based.  The  true  principle 
is  that  all  such  motions  should  specifically  present  the  questions 
sought  to  be  made,  so  that  the  court  on  appeal  shall  not  be  re- 
quired to  decide  any  other  questions  than  those  brought  before 
the  trial  court.  In  the  cases  we  have  examined  causes  have 
been  specified.3 

§  764.  Special  Finding— Motion  to  Strike  Out — As  we  have  seen, 
a  motion  for  a  venire  de  novo  will  not  lie  where  the  facts  are 
well  stated,  and  a  party  who  desires  to  present  the  question, 
whether  the  finding  is  contrary  to  the  evidence,  must  move  for 
a  new  trial  and  assign  the  proper  cause  in  his  motion.  We 
have  also  incidentally  remarked  that  the  decisions  establish  the 
rule  that  ordinarily  a  motion  to  strike  out  part  of  the  finding 
will  not  lie,  but  it  becomes  necessary  to  give  the  subject  a  some- 
what more  careful  consideration.  The  general  rule  that  a  mo- 
tion to  strike  out  is  not  a  proper  one  may  now  be  considered  as 
settled,4  but  how  far  the  rule  goes  or  what  cases  it  governs  has 

1  McClintock  v.  Theiss,  74  Ind.  200;  ceding  note  the  grounds  of  the  motion 

Shaw  v.  Merchants  Nat.  Bank,  60  Ind.  were  specified.     In   Deatty    v.  Shirley, 

83,  94;    Deatv  v.  Shirley,  S3  Ind.  218;  83  Ind.  21S.  it  was  said:     "The  motion 

Potter  v.  McCormack,  127  Ind.  439.  itselfspecifies  no  objection  to  the  verdict. 

1  In   Wilson  V.  Hamilton,   75  Ind.  71,  The  record  tails  to  show  that  any  detect 

the    overruling    of    the    motion    for    a  was   pointed    out  to    the    court  at    the 

venire  de  novo  was  specified  as  an  in-  hearing." 

dependent   error  and    the  specification  *  Tarkington  v.  Purvis.  12S  Ind.  1S2; 

was  treated  as  proper,  and   so  it  was  in  Sharp  V.  Malia.  124    Ind.    (.07;    La  Fol- 

Oglev.  Dill,  61  Ind.  438, 441;  Bonewitz  lette  v .   Higgins   (Ind.),  28  \.  E.  Rep. 

v.    Wvgant,   75   Ind.  41,   and    Locke   v.  768;    Hartlepp  V.  Whit.lv     Ind.).  2     V 

Merchants  Nat.  Dank,  66  Ind.  353.    See  E.  Rep.  535.      See.  also,  Clark  v.  State, 

Shaw  v.  Merchants  Nat.  l'.ank.  60  Ind.  125  I,ul-  L  Hays  v-  Hostetter,  125  Ind. 

S3.    This  seems  the  proper  practice,  in-  60;   Wraj  v.  Hill,  85  Ind.  546;   Levyw. 

asmuchas  a  motion  for  a  venire  de  novo  Chittenden,  120  Ind.  37,  22  N.  E.  Rep. 

is  entirely  distinct   and  different  from  a  92.     The  reporter'-   note  to  the  case   of 

motion  for  a  new  trial.  Knox  v.  Trafalet,  94  [nd.  J46,  does  not 

•  In  the  cases  referred  to  in  the  pre-  correctly    state   the    point   decided,   for 


720 


ERROR  IN   JUDICIAL  PROCEEDINGS. 


not  yet  been  determined.  Where  the  ground  upon  which  the 
court  is  asked  to  set  aside  its  finding  as  to  a  particular  fact  is 
that  the  fact  was  found  against  the  evidence,  the  motion  can 
not  be  well  taken.  This  we  affirm  for  the  reason  that  the  ap- 
propriate remedy  in  such  a  case  is  by  a  motion  for  new  trial, 
and  the  presence  of  the  evidence  in  the  record  is  necessary  to 
enable  the  appellate  tribunal  to  determine  whether  the  fact  was 
or  was  not  correctly  found.  In  the  absence  of  the  evidence  it 
would  be  impossible  to  determine  the  question. 

§  765.   Special  Finding— Particular  Facts  Outside  of  the  Issues — 

The  cardinal  and  far  reaching  rule  that  questions  must  first  be 
made  in  the  trial  court  seems  to  us  to  require  that  where  the 
special  finding  states  particular  facts  clearly  outside  of  the  issues 
the  general  rule  stated  in  the  preceding  paragraph  does  not 
apply,  and  that  a  motion  to  strike  out  particular  facts  not  within 
the  issues  will  lie.1  If  the  illegitimate  matter  can  not  be  ex- 
cluded upon  such  a  motion  it  is  difficult  to  conceive  what  rem- 


the  court  did  not  there  decide  that  a 
motion  to  strike  out  was  proper,  al- 
though it  decided  that  there  was  no  er- 
ror in  overruling  the  motion.  It  is  ev- 
ident that  the  decision  in  that  case  can 
not  be  regarded  as  authoritative,  for  the 
reason  that  the  point  was  not  consid- 
ered by  the  court.  In  the  case  of  Jordan 
v.  St.  Paul,  etc.,  Co.,  42  Minn.  172,  S.  C. 
43  N.W.  Rep.  839,6  Law.  Rep.  Ann.  573, 
the  court  held  that  a  motion  to  strike  out 
part  of  a  special  verdict  was  improper. 
It  was  there  said:  "Where  there  is  a 
general  verdict,  and  also  special  find- 
ings, we  do  not  think  it  proper  practice 
to  move  to  set  aside  one  of  the  special 
findings  upon  an  essential  fact  on  the 
ground  that  it  is  contrary  to  the  evi- 
dence, without  asking  to  have  a  new 
trial,  either  of  the  whole  issue  or  as  to 
the  particular  fact.  If  such  a  finding 
could  be  set  aside  on  that  ground  leav- 
ing the  general  verdict  and  other  spe- 
cial findings  to  stand,  then,  if  setting  it 
aside  would  require  a  judgment  different 


from  that  which  would  be  required  if  it 
were  retained,  the  setting  it  aside  on 
the  ground  stated  would  have  the  effect 
of  a  trial  by  the  court  without  a  jury." 
In  speaking  of  a  motion  to  strike  out 
part  of  a  special  verdict  the  Supreme 
Court  of  Wisconsin  said:  "The  two 
findings  thus  challenged  are  within  the 
issues  made  by  the  pleadings,  and  are 
material  to  the  case.  We  are  aware  of 
no  ground  upon  which  they  can  be 
properly  rejected,  unless  unsupported 
by  the  testimony."  Dahl  v.  Milwau- 
kee, etc.,  Co.,  65  Wis.  371,  374.  Under 
our  practice,  as  has  been  shown,  the 
findings  could  not  be  rejected  upon  a 
motion  to  strike  out  on  the  ground  that 
they  were  contrary  to  the  evidence;  the 
remedy  in  such  a  case  is  a  motion  for  a 
new  trial. 

1  We  are  not  here  considering  the 
subject  of  a  finding  bodily  outside  of 
the  issues,  but  we  are  considering  the 
subject  of  particular  facts  beyond   the 


motions  FOR  JUDGMENT.  72] 

edy  can  be  pursued  without  defeating  the  chief  object  which  a 
special  finding  is  intended  to  accomplish.     It  is  certainly  true 
that  one  of  the  principal  objects  a  special  finding  was  designed 
to  accomplish   is  to  enable  parties  to  bring  their  cases  to  the 
appellate  tribunal  without  the  evidence.     The  evidence,  it  is 
manifest,  can  not  give  any  light  upon  the  question  whether  a 
particular  fact  is  or  is  not  within  the  issues,  for  such  a  question 
must   be  determined   from  the  pleadings.     It  is  equally  clear 
that  facts  outside  of  the  issues  should  not  be  considered.     If 
such  facts  are  contained  in  a  special  finding  and  are  influential 
their   presence  is  wrongful,  and  if  their  presence  is  wrongful 
they  should  be  expelled.     The  familiar  rule  that  only  evidence 
pertinent  or  relevant  to  the  issue  is  competent  necessarily  re- 
quires that  particular  facts  not  within  the  issues  should  be  re- 
jected in  cases  where  the  appropriate  attack  is  made  upon  them, 
and  we  can  not  perceive  how  it  can  be  more  appropriately  made 
than  by  a  motion  to  set  aside  or  strike  out.     A  finding  may  be 
in  due  form,  clear  and  explicit,  and,  if  so,  a  motion  for  a  venire 
de  novo  would  be  unavailing,  so  that  the  motion  to  strike  out  par- 
ticular facts  beyond  the  issues  seems  the  only  direct  and  effective 
mode  of  getting  rid  of  the  illegitimate  facts.     It  must  be  true  that 
the  objection  that  particular  matters  are  outside  of  the  issues  may 
be  presented  by  a  motion  to  strike  out  or  else  it  must  be  true  that 
the  question  must  be  presented  by   a  motion  tor  a  new  trial, 
and,  as  such  a  motion  would  necessitate  an  exhibition  of  evi- 
dence and  rulings  thereon,  to  require  it  would  defeat  the  pur- 
pose of  the  law  providing   for  special  findings   and  uselessly 
cumber  the  record  and  put  parties  to  needless  expense.    A  mo- 
tion to  strike  out  a  particular  fact  can  be  determined  from  the 
record   proper,  and,  in   truth,  must  be   determined    from    that 
record,  that  is,  from  the  pleadings  and  the  special  finding.    The 
motion  designated  is  not  encumbered  by  useless  appendages, 
and  is  appropriate  and  efficacious.     We  have  here  considered 
the  question  of  a  motion  to  strike  out  a  particular  fact,  and  have 
not  considered  the  question  of  procedure  where  the  finding  is 
entirely  outside  of  the  issues  ;  that  is,  as  we  conceive,  quite   a 
different  question.     A  motion  to  strike   out  a  particular   fact 
where  some  of  the  facts  are  within  the  issues,  but  the  particular 
46 


-j22  ERROR   IN  Jl   DICIAL   PROCEEDINGS. 

fact  wholly  without,  is  a  very  different  thing  from  a  motion  to 
strike  out  facts  contained  in  a  special  verdict,  for  a  motion  to 
strike  out  a  particular  fact  contained  in  a  special  finding  asks 
the  court  to  review  its  own  action,  not  that  of  the  jury.  It  is 
unquestionably  settled  that  while  proceedings  are  in  fieri,  a 
court  may  correct  its  own  mistakes,  and  we  can  not  perceive 
why  this  rule  does  not  apply  to  a  motion  to  strike  out  a  particu- 
lar fact  outside  of  the  issues  where  some  of  the  facts  are  within 
the  issues  joined  upon  the  pleadings.  We  do  not  say  that  a 
court  may  change  its  decision  upon  a  question  of  fact  without 
Granting  a  new  trial  as  to  the  whole  case.  What  we  do  say  is 
that  it  may  change  a  ruling  by  striking  out  a  particular  fact 
beyond  the  issues  carried  into  a  finding  containing  facts  within 
the  issue. 

§  766.  The  difference  between  Cases  where  only  Particular  Facts 
are  outside  of  the  Issues  and  Cases  where  the  Finding  is  Wholly 
Outside — In  the  preceding  paragraph  we  alluded  in  general 
terms  to  the  fact  that  there  is  a  difference  between  cases  where 
the  special  finding  is  altogether  and  entirely  outside  of  the 
issues  and  cases  where  only  a  particular  fact  is  outside.  The 
difference  is  an  important  one  and  requires  consideration.  If  a 
particular  fact  is  stated  which  is  clearly  outside  of  the  issues, 
the  error  in  stating  it  can  not  be  reached  by  exceptions  to  the 
conclusions  of  law,  nor  by  a  motion  for  a  venire  de  novo.  If  a 
motion  for  a  new  trial  must  be  resorted  to,  a  proceeding  clearly 
not  contemplated  by  the  law  is  required,  and  one,  as  we  have 
shown,  which  will  uselessly  encumber  the  record.  That  a 
party  can  not  declare  upon  one  cause  of  action,  or  set  up  one 
defence  and  succeed  upon  another,  is,  of  course,  perfectly 
clear,  so  that  where  the  facts  are  wholly  outside  of  the  issue,  it 
is,  in  legal  contemplation,  as  if  there  were  no  facts  at  all  in  the 
record.  Thus,  if  a  party  should  sue  for  a  breach  of  contract 
and  the  facts  stated  should  show  a  right  to  damages  for  a  per- 
sonal injury,  such  facts  would  be  of  no  avail  for  any  purpose 
whatever.  In  such  a  case  it  would  be  appropriate  to  move  for 
judgment  or  to  except  to  adverse  conclusions  of  law,  for  there 
would  not  be  facts  upon  which  valid  conclusions  could  be  stated 
or  a  valid  judgment  rendered.  In  a  case  like  that  supposed 
(an  extreme  one,  but  extreme  cases  best  serve  for  illustrations);, 


MOTIONS   FOR  J1   DGMENT. 

the  conclusions  and  judgment  in  favor  of  a  plaintiff  would  be  ab- 
solutely foundationless.  But  where  part  of  the  facts  are  within 
the  issues  and  part  without,  it  is  radically  different.  Thus,  if  a 
plaintiff  should  sue  on  a  promissory  note,  and  the  court  in  ad- 
dition to  stating  legitimate  matters  concerning  the  note  should 
state  facts  showing  a  right  of  action  for  damages  for  per- 
sonal injury,  the  facts  concerning  the  injury  ought  to  be  elimi- 
nated. In  no  mode  could  they  be  more  appropriately  or  effica- 
ciously eliminated  than  by  a  motion  to  strike  out.  It  is  possi- 
bly true  that  where  illegitimate  facts  are  injected  into  a  special 
finding,  a  motion  to  modify  the  judgment  based  in  part  upon 
such  facts  would  be  proper,  but  even  if  it  would  be,  the  better, 
shorter  and  more  appropriate  remedy  is  the  motion  to  strike 
out  the  particular  facts  not  within  the  issues. 

§  767.  Finding  Wholly  Outside  of  the  Issues — Where  the  special 
finding  is  entirely  outside  of  the  issues,  the  question  as  to  the 
right  of  recovery  may  be  presented  by  a  motion  for  judgment, 
or,  according  to  the  decisions  in  some  of  the  cases,  by  a  proper 
exception  to  the  judgment.1  But  the  safer  practice  in  such  a 
case  for  the  unsuccessful  party  is  to  move  for  judgment,  or,  ac- 
cording to  some  of  the  decisions,  to  except  to  the  conclusions  of 
law.  It  is  certainly  consistent  with  the  cardinal  principle  that 
objections  must  be  first  presented  to  the  trial  court,  to  move  for 
judgment  where  the  facts  are  entirely  outside  of  the  issues. 
One  of  the  cases  upon  the  general  subject,  while  inferentially, 
if  not  expressly,  holding  that  a  motion  for  judgment  is  proper, 

1  In    Boardman   v.   Griffin,     52    Ind.  of  the  expressions  of  the  opinion    are 

101,  the  court  reversed   the  judgment,  not  erroneous,  inasmuch  as   they  seem 

holding  that  the   facts  contained  in  the  to  indicate  that  the  question  may  he  first 

special  finding  were  entirely  outside  of  made  on  appeal.      If  the  ease  is  to  be  re- 

the  issues.    It  was  said  in  the  course  of  garded  as  declaring  that   such  question 

the  opinion  that  :      "  When  the   trial  of  can  he  fust  made  on  appeal.it  is  to  that 

a  cause  is  by  the  court,  instead    of  a  extent  not  well  decided.  That  the  special 

jury,  whether  the  court  is  required  to  finding  must    he   confined  to  the  is-ucs 

find  the   facts   specially   or  not.it   can  is  well  settled.     Neisler  v.   Harris,  115 

not,  any  more  than  a  jury  can,  go  out-  Ind.  560,  565;  Bixel   v.   Bixel,  107  Ind. 

side   of   the    i-sues.      In    such    cases,  as  534,  537;    Louisville,   etc.,  Co.    V.    God- 

well  as  in  others,  the   parties   must    re-  man,    m|    Ind.   40,0,   494;    Hasselman  V. 

cover  upon  the  allegations  of  the  plead-  Carroll,  102   Ind.   153;  Cleveland,  etc., 

ings."     That  the  case  from  which   we  Co.  Wynant,  mo   Ind.   160;   Palmer  v, 

have  quoted  asserts  a  correct  conclusion  Chicago,  etc..  Co.,  n:  Ind.  250 
is  clear,  but  it  is  not  so  clear  that  some 


724  ERROR   IN  JUDICIAL  PROCEEDINGS. 

erroneously  disregards  this  fundamental  principle,  inasmuch  as 
it  seems  to  authorize  the  Conclusion  that  the  question  may  be 
first  made  on  appeal.  In  some  of  the  cases  it  is  held  that  the 
question  as  to  the  right  of  recovery  in  a  case  where  the  theory  of 
the  complaining  party  is  that  the  finding  is  wholly  outside  of  the 
issues  may  be  presented  by  exceptions  to  the  conclusions  of  law.1 
It  is,  perhaps,  safe  to  say  that  the  remedies  are  cumulative, 
although  it  seems  to  us  that  where  the  finding  is  altogether  beyond 
the  issues,  the  more  appropriate  remedy  is  a  motion  for  judgment 
In  such  a  case  there  is  not  simply  an  error  in  the  conclusions 
of  law  upon  the  facts,  but  an  error  in  stating  facts  which  the 
issues  do  not  embrace.  As  the  facts  are  not  within  the  issues 
their  statement  is  utterly  futile.  If  without  the  issues,  the  facts 
can  not  be  used  as  the  basis  of  a  judgment,  for  a  finding  of  facts 
outside  of  the  issues  is  a  nullity.2  If  such  facts  are  nullities, 
they  can  not  be  regarded,  much  less  can  they  support  a  re- 
covery. In  the  case  of  erroneous  conclusions  of  law  upon  facts 
within  the  issues,  the  error,  where  there  is  error,  in  stating  con- 
clusions of  law,  is  radically  and  essentially  different  from  the 
error  in  stating  conclusions  upon  matters  that  ought  not  to  have 

1  Thomas  v.  Dale,  86  Ind.  435,  and  no  conceivable  reason  why  a  motion 
cases  cited.  See,  also,  Arnold  v.  An-  for  judgment  is  not  appropriate  where 
gcll,  62  N.  Y.  508;  Town  of  Cicero  v.  all  the  material  facts  are  outside  of  the 
Clifford,  53  Ind.  191,  192.  issues.     Some    general   expressions  in 

2  In  Brenner  v.  Bigelow,  S  Kan.  496,  Cruzan  v.  Smith,  41  Ind.  2S8,  seem  to 
510,  the  court  said:     "  With  regard  to  indicate  a  different  doctrine,    but   the 

•the  findings  of  the  court,  it  seems  question  was  not  before  the  court,  and, 
scarcely  necessary  to  say  that  such  of  of  course,  not  authoritatively  decided, 
the  facts  as  are  not  founded  upon  any  It  is  to  be  said  of  Cruzan  v.  Smith, 
issue  or  issues  made  by  the  pleadings  supra,  that  it  has  been  disapproved 
are  mere  nullities.  The  court  can  not  upon  many  points.  Anderson  v.  Don- 
go  outside  of  the  issues  to  make  find-  nell,66  Ind.  150,  159;  Robinson  v.  Sny- 
ings.  Every  finding  that  is  outside  of  der,  74  Ind.  no;  Lockwood  v.  Dills,  74 
the  issues  must  be  disregarded.  And  Ind.  56.  The  case  of  Peden  v.  King,  30 
v,  e  suppose  it  is  hardly  necessary  to  say  Ind.  1S1,  does  not  consider  or  decide  the 
that  the  court  can  not  find  against  the  question  under  discussion,  for  in  that 
facts  as  admitted  by  the  pleadings."  case  no  such  question  was  presented. 
This  doctrine  is  explicitly  approved  All  that  is  there  decided  is  that  excep- 
in  Mays  v.  Foster,  26  Kan.  518,  and  tions  must  be  taken  to  the  conclusions 
New  by  v.  Myers,  44  Kan.  477.  If  of  law  where  the  error  is  in  applying 
facts  beyond  the  issues  are  to  be  disre-  the  law  to  the  facts.  There  is  no  allu- 
garded  as  mere  nullities, — and  this  is  sion  to  the  case  of  a  finding  of  facts 
required  by  settled  principles, — there  is  whol'y  outside  of  the  issues. 


MOTIONS  FOR  JUDGMENT,  725 

come  into  the  record  and  can  not  be  the  basis  of  a  judgment  of 
recovery.  The  cases  where  the  facts  stated  are  wholly  without 
the  issues,  and  cases  where  the  facts  are  within  the  issues,  but 
the  conclusions  of  law  stated  on  them  are  erroneous,  should  be 
carefully  discriminated,  for  there  is  a  radical  difference  in  the 
procedure.  Where  the  facts  stated  are  within  the  issues  and 
the  conclusions  of  law  erroneous,  the  objection  must,  as  will  be 
more  fully  shown  hereafter,  be  taken  by  excepting  to  the  con- 
clusions of  law.  Where  the  error  is  in  stating  the  conclusions 
of  law  and  not  in  stating  the  facts,  neither  a  motion  for  a  new 
trial  nor  for  judgment  is  appropriate  or  effective,  nor,  it  may  be 
added,  is  a  motion  for  a  venire  de  novo} 

§  768.  Practice  where  the  Judgment  does  not  follow  the  Finding 
or  Verdict — Where  the  judgment  does  not  follow  the  finding  or 
verdict,  the  proper  practice  is  to  move  to  modify,  correct  or 
amend  the  judgment.  It  is  probable,  it  is,  perhaps,  safe  to 
say,  that  if  the  judgment  entirely  departs  from  the  finding  or 
verdict  a  specific  exception  to  the  judgment  would  present  the 
question,  but  it  is  always  safer  to  move  to  correct,  modify  or 
amend.  This  is  certainly  necessary  where  the  judgment  is 
valid  in  part  and  does  not  wholly  depart  from  the  finding  or 
verdict.2 

1  This  general  subject  is   considered  unless  proper  steps  have  been  taken  by 

in  the  chapter  on  "  Exceptions,"  post,  objection    duly  presented    to  the  trial 

See  Midland  Ry.  Cd.  v.  Dickason,  29  court  to  secure  a  modification  or  amend  - 

N.  E.  Rep.  775;   Hull  v.  Louth,  109  Ind.  ment  by  amending  or  rejecting  the  part 

315,  Western  Union  Tel.  Co.  f.Trissal,  which  is  wrong."    The  cases  of  Baj 

98  Ind.  566.  v.  Glenn,  72   Ind.  5;  Teal  :■.  Spangler, 

*  In  the  case  of  Peoples,  etc.,  Asso-  72   Ind.  3S0,  and  Becknell   v.  Becknell, 

ciation   v.  Spears,    115   Ind.   297,  300,  it  HO  Ind.  42,  were-  cited.      It  is  proper  to 

was  said:     "  In  case  the  judgment  tails  say  of  the  ease  of  People's,  etc.,  Asso- 

to  follow  the   finding,  it   may    be  cor-  ciation  v.  Spears,  supra,  that  the  inci- 

rected,  modified  or  amended,  on  motion  dental   reference    to   the   common   law 

for   that  purpose.      (.Juestions  on   such  doctrine  that  a  verdict  must  respond  to 

motions  an-  saved  by  a  bill  cf  excep-  the   whole    issue   or    a   venire  </<■   novo 

tions.     Forsvthe    V.   Kreuter,    100    Ind.  will  he  awarded  can  not  be  regarded  as 

27;    Adams  v.  La  Rose,  75   1ml.  471."  a  denial  of  the  rule  declared  in  Graham 

The  court    in  the  ease   first  named  also  y.  State,  66    liul.  386,  and   reaffirmed   in 

quoted   with  approval   from  a    former  many  other  ea>e>,  for  the  question  was 

decision    the   following:      "Where  any  not  before  the  court  for  decision, 
part  cf  a  judgment  is  valid,  it  will  stand 


CHAPTER   XL 


OBJECTIONS. 


t)  769- 

770. 
77i- 


773- 


774- 


775- 


The  difference  between  objec- 
tions and  exceptions. 

Objections  must  be  specific. 

The  grounds  of  the  objection 
must  appear  of  record. 

Objections  must  be  seasonably 
interposed. 

The  objection  must  come  from 
the  proper  party. 

Practice  where  evidence  is  com- 
petent against  one  party  but 
not  against  other  parties. 

Grounds  of  objection  should  all 
be  stated. 


§  776.  Jurisdictional  objections. 

777-    Objections  to  pleadings. 

778     Objecting  to  jurors. 

779.  Specifying  objections  to  evi- 
dence. 

7S0.  Separating  competent  from  in- 
competent evidence. 

781.  Practice  where  the  question  is 

proper  but  the  answer  incom- 
petent. 

782.  Specification    of    objections    to 

conduct  of  parties  and  coun- 
sel. 


§  769.   The  difference  between  Objections  and  Exceptions— An 

objection  precedes  an  exception.1  The  office  of  the  objection 
is  to  present  to  the  trial  court  the  specific  grounds  upon  which 
the  court  is  asked  to  act  in  giving  a  decision,  so  that  the  court 
may  be  fully  informed  as  to  the  reasons  for  the  ruling  sought 
by  the  objecting  party.  This  is  the  office  of  the  objection  in 
the  trial  court,  but  its  office  in  the  appellate  tribunal  is  to  there 
present  the  precise  questions  that  were  presented  to  the  trial 


1  In  the  case  of  Brownlee  v.  Hare,  64 
Ind.  311,  318,  it  was  said:  "The  record 
fails  to  show  that  the  court,  in  terms, 
overruled  these  objections,  or  that  the 
appellant  excepted  to  any  such  decision. 
An  objection  is  not  an  exception  in  any 
legal  sense.  An  objection  may  not  be 
insisted  on;  if  overruled  or  sustained 
the  party  aggrieved  by  such  ruling  must 
except  thereto  at  the  time,  in  the  mode 
prescribed  by  law,  or  he  can  not  after- 
wards complain  of  it.     It  is  firmly  set- 

(7 


tied  by  the  decisions  of  this  court,  that 
unless  an  exception  is  taken  and  entered 
in  the  record,  at  the  time  and  in  the 
manner  prescribed  by  the  statute,  the 
objection  will  be  waived."  The  state- 
ments of  the  court  in  the  extract  we 
have  quoted  show  one  particular — and 
an  important  one — in  which  an  excep- 
tion differs  from  an  objection,  but  they 
do  not  show  all  the  particulars  in  which 
it  differs  as  is  evident  from  what  is  said 
in  the  text. 

26) 


OBJECTIONS. 

court,  as  well  as  to  inform  that  tribunal  of  the  specilic  grounds 
upon  which  the  party  asks  a  favorable  decision.  The  oilice  of  the 
objection  in  the  trial  court  is  to  direct  attention  to  specilic  points 
and  request  a  ruling  upon  them,  but  its  office  in  the  appellate 
tribunal  is  to  direct  attention  to  specific  points  and  to  prevent 
the  party  from  making  points  in  the  appellate  tribunal  that 
were  not  ruled  upon  by  the  trial  court.  It  is  evident,  there- 
fore, that  an  objection  well  made  serves  a  double  purpose 
on  appeal.  An  exception  is  not  required  to  present  specific 
grounds  or  reasons  upon  which  a  ruling  is  asked,  for  an 
exception  follows  the  ruling,  while  an  objection  precedes  it 
and  lays  the  foundation  for  the  exception.  As  the  objection 
constitutes  the  foundation  for  the  exception  it  must  be  sufficient 
in  form  and  substance  to  support  the  exception,  for  without 
such  support  the  exception  is  destitute  of  strength.  The  excep- 
tion does  not  present  reasons  or  grounds  as  the  objection  does, 
but  it  directs  attention  to  the  objection  and  fastens  it.  The  ex- 
ception, one  may  say,  clinches  the  objection.1  But  the  principal 
purpose  of  an  exception  is  to  save  a  question  upon  an  adverse 
ruling  for  review  on  appeal.  So  far  as  the  trial  court  is  con- 
cerned the  exception  is  of  very  little  practical  utility  as  com- 
pared with  its  office  on  appeal,  although  in  some  of  the  early 
discussions  on  the  code  system  it  is  treated  as  affording  the 
trial  court  an  opportunity  to  review  and  correct  its  own  ruling. 
It  is,  however,  true  that  an  exception  is  in  some  instances  of 
practical  use  in  the  trial  court,  for  where  a  ruling  upon  an  ob- 
jection is  not  supplemented  by  an  exception  the  objection  is,  as 
the  case  referred  to  in  the  opening  sentence  of  this  paragraph 
decides,  effectually  waived.  If,  therefore,  a  party  does  not 
follow  an  objection  by  the  appropriate  exception,  the  doctrine 
of  waiver  will  operate  against  him.  This  is  essentially  true  in 
cases  where  a  review  of  a  judgment  is  sought,  for  a  ruling  upon 
a  question  of  law  can  not  be  reviewed  unless  the  objection  was 
supplemented  by  the  proper  exception.-     As  we  have  touched 

1  United  States  v.  Breitling,  20  How.  ford,  21    Ind.   156;    American   Ins. 
(U.  S.)  252.  v.  Gibson,   104  Ind.  336.     In  the  case 

2  Train  v.  Gridley,  36  Ind.  241;  Da-  last  named  the  doctrine  of  reviewing 
vidson  v.  King,  51  Ind.  224;  Goar  v.  judgments  is  well  stated.  The  court  said: 
Cravens,  57  Ind.  365;  Preston  v.  San-  " The  rules  which  govern  in  actions  to 


728 


ERROR   IN  JUDICIAL  PROCEEDINGS. 


upon  the  subject  of  proceedings  to  review  a  judgment  it  may 
not  be  improper  to  say,  although  at  the  expense  of  a  slight  di- 
gression, that  where  objections  and  exceptions  are  necessary 
to  make  error  available  on  a  bill  to  review,  the  objections  and 
exceptions  must  be  legitimately  brought  into  the  record.1 

§  770.  Objections  must  be  Specific — Theoretically  the  rule  that 
objections  must  be  specific  is  universal  but  practically  it  is  only 
general.      It  is,  however,  a  general  rule  of  wide  sweep  and  un- 


review  are,  in  the  main,  the  same  that 
govern  in  an  appeal  to  this  court.  The 
errors  that  may  be  made  available  in  an 
action  to  review  are  those  that  may  be 
made  available  upon  an  appeal.  Rice 
v.  Turner,  72  Ind.  559;  Richardson  v. 
Howk,  45  Ind.  451;  Tachau  v.  Fiedel- 
dey.  Si  Ind.  54;  Indiana,  etc.,  Co.  v. 
Routledge,  7  Ind.  25;  Hardy  v.  Chip- 
man,  54  Ind.  591.  It  has  been  uniformly 
held  that  if  no  objection  be  made  to  the 
judgment  and  no  motion  made  to  mod- 
ifv  it  in  the  trial  court,  no  objection  can 
be  made  available  upon  appeal,  nor  in 
an  action  to  review,  however  erroneous 
the  judgment  may  be.  This  rule  has 
been  applied  even  where  the  judgment 
was  rendered  by  default.  Barnes  v. 
Wright,  39  Ind.  293;  Darlington  v. 
Warner,  14  Ind.  449;  Searlc  v.  Whip- 
perman,  79  Ind.  424;  Barnes  v.  Bell,  39 
Ind.  32S;  Baldwin  v.  School  City  of  Lo- 
gansport,  73  Ind.  346;  Ludlow  v. Walk- 
er, 67  Ind.  353;  Johnson  v.  Prine,  55 
Ind.  351;  Evans  v.  Fceny,  Si  Ind.  532; 
McCormick  v.  Spencer,  53  Ind.  550; 
Smith  v.  Tatman,  71  Ind.  171;  Powers 
v.  Johnson,  86  Ind.  29S;  Forgey  v.  First 
National  Bank,  66  Ind.  123;  Buchanan 
v.  Berkshire  Life  Ins.  Co.,  96  Ind. 
510."  It  is  held  in  Berkshire  v.  Young, 
45  Ind,  4.61,  that  where  a  complaint  en- 
tirely fails  to  state  a  cause  of  action,  a 
bill  of  review  will  lie,  although  there  is 
no  demurrer  or  exception,  and  in  other 
cases  this  general  doctrine  is  asserted. 
Emmett  v.  Yandes,  60  Ind.  548;  David- 


son v.  King,  49  Ind.  33S.  In  Berkshire 
v.  Young  there  is  an  attempt  to  dis- 
criminate between  that  case  and  some 
of  the  earlier  cases,  but  it  is  to  be 
doubted  whether  the  doctrine  is  not 
wholly  unsound.  In  later  cases  much 
of  the  reasoning  in  Berkshire  v.  Young 
has  been  completely  overthrown.  Searle 
v.  Whipperman,  79  Ind.  424,  42S; 
Tachau  v.  Fiedeldey,  81  Ind.  54,  62.  It 
is  in  conflict  in  many  respects  with  such 
cases  as  Jordan  v.  De  Heur,  71  Ind. 
199,  and  Teal  v.  Spangler,  72  Ind.  380. 
The  case  of  Emmett  v.  Yandes,  supray 
is  directly  overruled.  Scarlett  v.  Snod- 
grass,  92  Ind.  262,  265;  Shoaf  v.  Joray, 
S6  Ind.  70.  Where  there  is  no  general 
jurisdiction  of  the  subject,  the  bill  will 
lie,  as  it  has  been  held,  although  there 
was  no  exception.  Davis  v.  Perry,  41 
Ind.  305;  Anderson  v.  Anderson,  65 
Ind. 196. 

1  In  Gates  v.  Scott,  123  Ind.  459,  462, 
it  was  said:  "The  error,  in  this  re- 
spect, is  not  properly  presented.  A  re- 
view can  only  be  had  for  such  error  as 
would  have  been  available  in  the  Su- 
preme Court  on  appearand  to  have  made 
the  ruling  on  motion  for  new  trial  availa- 
ble on  appeal  it  would  have  been  neces- 
sary to  have  filed  a  bill  of  exceptions 
within  the  time  allowed;  and  it  does  not 
appear  that  any  bill  of  exceptions  was 
ever  prepared,  signed  or  filed.  Rigler 
v.  Rigler,  120  Ind.  431;  Baker  v.  Lud- 
lam,  118  Ind.  87." 


OBJECTIONS.  729 

usually  free  from  exceptions.  Where  it  is  not  entirely  clear 
that  the  particular  case  constitutes  an  exception  it  is  sate  to  as- 
sume that  the  rule  prevails  and  that  the  grounds  of  the  objec- 
tion must  be  specifically  stated.1  Specification  of  the  particu- 
lar grounds  or  reasons  upon  which  a  party  asks  the  court  to 
make  a  ruling  in  his  favor  is  necessary,  as  indicated  in  the 
preceding  paragraph,  to  prevent  a  violation  of  the  settled  rule 
that  parties  must  abide  by  the  theories  assumed  in  the  trial 
court,  and  also  to  prevent  a  violation  of  the  subsidiary  doctrine 
that  a  party  can  not  urge  one  point  in  the  trial  court  and  an- 
other on  appeal.2  It  is  also  necessary  to  prevent  a  violation  of 
the  wider  doctrine  than  either  of  those  stated,  that  is,  the  funda- 
mental doctrine  that  appellate  jurisdiction  is  one  of  review. 
But  there  is  still  another  reason  why  the  grounds  of  objection 
should  be  specifically  stated,  and  that  is  this:  Common  fair- 
ness to  the  adverse  party  requires  specification,  inasmuch  as  it 
is  but  just  that  he  should  be  informed  of  the  real  nature  and 
full  force  of  the  objections  which  he  is  required  to  meet  and 
given  an  opportunity  to  obviate  them.  It  is  evident  that  speci- 
fication is  important  for  many  reasons  and  that  the  rule  requir- 
ing it  is  not  justly  subject  to  the  censure  sometimes  passed  upon 
it  bv  the  courts.  It  is  not  a  mere  technical  rule  but  one  re- 
quired by  sound  reason  and  supported  by  principle.  The  as- 
sertion that  the  rule  is  technical  is  as  foundationless  as  the  old 


1  As  the  subject  of  this  chapter  is  un-  Manhattan  Ry.Co..  125  N.Y.697;  Ad- 
folded  the  correctness  and  importance  ams  v.  Irving  Nat.  Hank,  ti6  N.Y.606; 
ofthe  statement  of  the  text  will  become  State  v.  Watson.  81  towa,  380,  46  X.W. 
almost  self-evident.  It  may,  however,  Rep.  S6S;  Portoues  v.  Holmes,  35  111. 
be  well  enough  to  here  refer  to  some  of  App.  312;  Chicago,  etc.,  Co.  v.  Nix 
the  cases  which  illustrate  and  enforce  (111.),  27  N.  E.  Rep.  Si;  Furguson  :•. 
our  statement.  Lewis  v.  New  York,  United  States,  etc.,  Co.,  n  N.  Y.  Supp. 
etc.,  Co.,  123  N.  Y.  496,  26  V  E.  Rep.  738;  Carter  v.  Bennett,  1  Fla.  283,  337; 
357;  Saxon  v.  Boyce,  1  Bailev  (So.  Smith  v.  White,  5  Dana,  376. 
Car.),  66;  State  v.  Hope,  100  Mo.  547,8  *  Rush  v.  French,  i  Ariz.  Ty.  99, 124; 
Law.  Rep.  Anno.  608, and  note;  Shafer  Manning  v.  Gasharie,  27  Ind. 
O.Ferguson,  103  Ind.  90,  and  cases  cited;  Wakeman  v.  Jones,  5  End.  454;  Hyatt 
Young  v.  Martin.  8  Wall.  354;  City  of  v.  Clements, 65  Ind.  12;  Evans  f. State, 
Delphi  v.  Lowery,  74  Ind.  520.  S.C.39  67  Ind.  68;  Betson  v.  State.  47  Ind.  54; 
Am.  Rep.  98;  Ostrander  v.  Weber,  u  \  Bowers  v.  Bowers,  53  Ind.  430;  Grant 
N.  Y.95,  21  N.  E.  Rep.  112;    Post  v.  v.  Westfall,  57  Ind.  121. 


730 


ERROR   IN   JUDICIAL   PROCEEDINGS. 


cry  that  the  "rules  of  logic  are  the  breeders  of  disputatious 
nothings." 

§  771.   The  Grounds  of  the  Objection  must  Appear  of  Record — It 

is  necessary  that  the  specific  grounds  of  an  objection  should  be 
appropriately  incorporated  in  the  record.1  Many  of  the  rea- 
sons given  in  the  preceding  paragraphs  support  the  conclusion 
here  asserted.  There  is,  however,  another  cogent  reason  which 
gives  it  support  and  that  is  this :     The  appellate  tribunal  can 


1  In  the  case  of  Camden  v.  Doremus, 
3  How.  (U.  S.).  si 5.  529,  the  court  used 
this  language:  "  With  regard  to  the 
manner  and  the  import  of  this  objec- 
tion, we  would  remark,  that  they  wore 
of  a  kind  that  should  not  have  been 
tolerated  in  the  court  below  pending 
the  trial  of  the  issue  before  the  jury. 
Upon  the  offer  of  testimony,  oral  or 
written,  extended  and  complicated  as  it 
may  often  prove,  it  could  not  be  ex- 
pected upon  the  suggestion  of  an  ex- 
ception, which  did  not  obviously  cover 
the  competency  of  the  evidence,  nor 
point  to  some  definite  defect  in  its  char- 
acter, that  the  court  should  explore  the 
entire  mass  for  the  ascertainment  of  de- 
fects which  the  objector  himself  either 
would  not  or  could  not  point  to  their 
view.  It  would  be  more  extraordinary 
still,  if,  under  the  mask  of  such  an  ob- 
jection, or  mere  hint  at  objection,  a 
party  should  be  permitted  to  spring 
upon  his  adversary  defects  which  it  did 
not  appear  he  ever  relied  on,  and  which, 
if  they  had  been  openly  and  specifically 
alleged,  might  have  been  easily  cured. 
'Tis  impossible  that  this  court  can  de- 
termine, or  do  more  than  conjecture, 
as  the  objection  is  stated  in  the  record, 
whether  it  applied  to  form  or  sub- 
stance, or  how  far.  in  the  view  of  it 
presented  to  the  court  below,  if  any 
particular  view  was  so  presented,  the 
court  may  have  been  warranted  in 
overruling  it.  We  must  consider  ob- 
jections of  this  character  as  vague  and 


nugatory,  and,  if  entitled  to  weight 
anywhere,  certainly  without  weight  be- 
fore an  appellate  tribunal."  Very  simi- 
lar is  the  language  used  by  the  court  in 
the  case  of  Russell  v.  Branham,  8 
Blackf.  277.  "  We  are  not  informed  by 
the  record,"  said  the  court  in  that  case, 
"  what  the  particular  objection  was, 
and  we  can  not,  therefore,  notice  it. 
The  defendants  should  have  informed 
the  circuit  court  of  the  ground  of  their 
objection,  and  when  their  motion  was 
overruled,  they  should  have  taken  care 
to  have  had  such  ground  of  objection 
made  a  part  of  the  record."  In  speak- 
ing of  the  rule  declared  in  the  case  last 
named,  it  was  said,  in  City  of  Delphi  v. 
Lowery,  74  Ind.  520,  522,  that:  "  This 
doctrine  has,  by  a  long  and  unwavering 
line  of  decisions,  been  ingrained  into 
our  system  of  procedure  as  one  of  its 
fundamental  principles.  The  party 
must  state  specifically  his  grounds  of 
objection,  and  the  bill  of  exceptions 
must  exhibit  them  as  stated.  Unless 
this  rule  is  adhered  to  we  would  often 
have  cases  where  one  ground  of  objec- 
tion was  stated  in  the  court  below,  and 
another  and  different  one  urged  on  ap- 
peal." In  Bingham  v.  Walk,  12S  Ind. 
[64,  173.  it  was  said:  "To  permit  the 
appellants  to  shift  their  grounds  of  ob- 
jections would  be  grossly  unfair  and  con- 
trarv  to  the  rules  established  by  this 
court."  Citing  Ohio,  etc.,  Co.  V.  Walk- 
er, 113  Ind.  196;  Fitzpatrick  v.  Papa, 
89  Ind.  17. 


OBJECTIONS.  7,31 

consider  only  such  matters  as  are  properly  of  record  and  as  to 
that  tribunal  a  matter  not  of  record  has  practically  no  exist- 
ence. It  is  true  that  in  many  instances,  as,  for  illustration,  in 
rulings  upon  demurrers  to  pleadings,  the  grounds  of  objection 
appear  in  the  record  proper,  but  it  is  nevertheless  very  often 
true  that  they  must  be  exhibited  by  a  bill  of  exceptions.  Where 
the  record  proper  exhibits  them  no  bill  is  required,  but  where 
they  are  not  so  exhibited  a  bill,  or  its  equivalent  where  provis- 
ion is  made  by  statute  for  its  equivalent,  is  indispensably  nec- 
essary to  exhibit  the  specific  objections  alleged  in  the  trial 
court.  The  rule  is  clear  and  strong  that  the  specific  objections 
must  appear  in  the  record  as  the  law  requires.1  The  question 
as  to  the  sufficiency  of  an  objection,  as  well  as  to  the  sufficiency 
of  its  exhibition  by  the  record,  generally  arises  in  cases  where 
objections  are  alleged  to  the  admission  of  evidence,  but  the 
rule  is  by  no  means  confined  to  such  cases. 

§  772.  Objections  must  be  Seasonably  Interposed — In  strictness 
an  objection  must  be  made  at  the  time  action  is  asked  of  the 
court  or  proposed  by  it.2  This  is  true  for  a  reason  we  shall 
here  allude  to,  and  not  simply  because  of  the  general  doctrine 
that  parties  must  act  with  promptness  and  vigilance,  although 
that  doctrine  is  not  without  influence.  The  reason  to  which  we 
refer  is  that  an  exception  must,  as  a  general  rule,  immediately 
follow  the  ruling.  If  other  rulings  or  decisions  intervene  the 
exception  is,  ordinarily,  ineffective.     The  subject  here  alluded 

1  United  States  v.  Mc  Master-;,  4  Wall,  354:  McCormick  v.  Laughran,  16 

6S0;    Burton  v.  Driggs,  20  Wall!   [25,  87;  Crabs  v.  Mickle,  5  Ind.  145;  Har- 

133;  Maysv.  Fritton,  20  Wall. 414,  418;  rison  v.  Young,  9  Ga.  359,  366.     Where 

Gharkey  v.  Halstead,  1  Ind.  389;  Curry  evidence  is  admitted  a  motion  to  strike 

v.  Bratney,  jo  Ind.  195;  Rosenthal  v.  out  may,  where  there  is  reason  for  the 

Chisum,  1  New.  Mex.  637;     Fischer  v.  delay,  be  made  before  the  close  o(  the 

Neil,  6  Fed.  Rep.  89.  evidence.    Miller  v.  Montgomery,  78 N. 

1  The  general   rule   is   that    a  party  Y.  282;  Judge  of  Probate  v.  Stone,  44  N. 

must  avail  himself  of  the  first  reasona-  II.  593;  Selkirk  v.  Cobb,  13  Gray.  313. 

ble  opportunity.    Maxwell  v.  Hannibal,  But  this  practice  is  not  regarded  with 

etc.,  Co.,  S5  Mo.  9:;;  Bull  v.  Common-  favor,  nor  can  such  a  motion  be  made 

wealth,   14  Gratt.  613;    Price  v.  Com-  as  a  matter  of  right    Gilmore  v.  Pitts- 

monwealth,  77  Va.  393;  Harvey  v.  State,  burgh,  etc.,  Co.,  to)  Pa.  St.  275;  Gaw- 

40  Ind.  516;  State  : .  Peak,  85  Mo.  [90;  try  v.  Doane,  51  N.  Y.  84,  90. 
Atchison,  etc.,  Co.  V.  Stanford.  (2  Kan. 


732  ERROR  IN  JUDICIAL   PROCEEDINGS. 

to  will  be  considered  at  another  place,  but  it  seems  necessary 
to  refer  to  it  here  in  order  to  make  our  meaning  clear. 

§  773.  The  Objection  must  come  from  the  Proper  Party — It  is 
quite  clear  that  an  objection  alleged  by  a  party  not  entitled  to 
interpose  it  is  valueless.1  Thus,  a  party  can  not  object  to  evi- 
dence which  does  not  affect  him  in  any  manner,  although  it 
may  affect  other  parties  to  the  suit  or  action.  The  general  doc- 
trine stated  finds  its  most  frequent  and,  perhaps,  most  important 
practical  exemplification  in  objections  to  evidence  made  by  two 
or  more  parties  where  it  is  valid  only  as  to  one.  It  has  been 
held  in  numerous  cases  that  an  objection  by  two  or  more  parties 
is  unavailing  in  cases  where  the  objection  is  valid  only  as  to 
one  of  the  parties.  The  rule  that  an  objection  by  parties  jointly 
where  it  is  good  as  to  only  one  is  unavailing  is  an  elementary 
one  and  runs  throughout  the  whole  system  of  procedure.  It 
prevails  in  the  assignment  of  errors,  in  motions  of  almost  every 
class,  in  the  filing  of  demurrers,  in  motions  for  judgment,  and 
in  exceptions  to  special  findings.2 

§  774.  Practice  where  Evidence  is  Competent  against  One  Party 
bnt  not  against  Other  Parties — Where  evidence  is  competent  as 
against  one  of  the  parties  it  can  not,  of  course,  be  entirely  ex- 
cluded,3 although  it  may  not  be  effective  against  other  parties. 
Its  effect  may  be  limited  to  the  party  against  whom  it  is  com- 
petent. This  object  may  be  secured  by  appropriately  request- 
ing the  court  to  direct  or  instruct  the  jury  to  consider  it  only  as 
to  the  party  against  whom  it  has  any  force  or  effect.4 

1  Carr  v.  Boone,  ioS  Ind.  241.  See  Ind.  93;  First  Nat.  Bank  v.  Colter,  61 
Heberd  v.  Wines,  105  Ind.  237.  Ind.  153;  Bosley  v.  National,  etc.,  Co., 

2  It  is  hardly  necessary  to  refer  to  the  123  N.  Y.  550,  557;  Clark  v.  Lovering, 
decided  cases  upon  this  familiar  doc-  37  Minn.  120,33  N.  W.  Rep.  776;  Dunn 
trine,    but    as    cases    arc    at    hand    we  v.  Gibson,  9  Neb.  513. 

cite  them.     Walker  v.  Topper,  2  Utah,  3  Taylor  v.  Deverell,  43  Kan.  469,  23 

96;    llolzman  v,  Hibben,  100  Ind.  338;  Pac.  Rep.  628;   Pierce  v.  McConnell,  7 

Wilkerson  v .  Rust,  57  Ind.  172;   Web-  Blackf.  170;  Bond  v.  Nave,  62  Ind.  505; 

ster  v.  Tibbits,  19  Wis.  439;   New  York,  Graham    v.    Henderson,    35    Ind.    195; 

etc.,  Co.  v.   Schuyler,    17    N.  Y.  592;  Cowan  v.  Kinney,  33  Ohio  St.  422;  Ed- 

Feeney  v.  Mazelin,  S7  Ind.  226;  Rob-  wards  v.  Tracy,  62  Pa.  St.  374;  Whit- 

ertsonf .  Garshwiler,  Si  Ind.  463;  Boyd  ney  v.  Ferris,  10  Johns.  66. 

v.    Anderson,    102  Ind.   217;    Estep  v.  *  See  Vannoy  v.  Klein,  122  Ind.  416. 
Burke,  19  Ind.  S7;   Teter  v.  Hinders.  19 


OBJECTIONS. 

§  775.  Grounds  of  Objection  should  all  be  Stated — Where  there 
are  several  grounds  of  objection  they  should  be  stated  in  one 
motion  or  objection.  Good  practice  requires  that  parties  should 
present  all  their  grounds  of  objection  in  one  motion.1  Courts 
are  under  no  duty  to  permit  parties  to  assign  grounds  of  objec- 
tion in  a  series  of  motions,  and  it  is  unsafe  to  attempt  to  do  so, 
since  whether  that  course  shall  or  shall  not  be  permitted  is,  as 
a  general  rule,  a  matter  of  discretion.  To  be  safe  the  grounds 
of  objection  should  be  embodied  in  one  motion.  Another  con- 
sideration is  important  in  this  connection  and  that  is  this  :  where 
specific  grounds  of  objection  are  stated  the  implication  is  that 
there  are  no  others,  or,  if  others,  that  they  are  waived.2  This 
doctrine  can  not  apply  with  the  same  force  to  objections  to  evi- 
dence made  in  the  course  of  a  trial  as  it  does  to  formal  written 
motions,  but  it  does  apply,  although  in  a  somewhat  limited  ex- 
tent, to  such  objections.  This  we  say  for  the  reason  that  the 
particular  grounds  of  objection  must  be  stated  to  the  trial  court 
and  the  same  grounds  of  objection  brought  before  the  appellate 
tribunal  by  the  record.  While  this  is  true  it  is  likewise  true 
that  a  party  may  during  the  trial  in  rare  instances  supplement 
the  particular  grounds  of  objection  first  urged  by  additional 
ones.  But  where  the  objection  is  by  a  formal  motion,  even 
though  the  motion  is  addressed  to  evidence,  the  specific  grounds 
of  objection  should  be  incorporated  in  one  motion.  As  an  ex- 
ample may  be  taken  a  motion  to  suppress  a  deposition.3     It  is 

1  Adams  v.  Lockwood,  30   Kan.  373;  v.   Witherbee,   77   Wis.  4.19,  46  X.   W. 

Pattison    v.  Bacon,  12   Abb.  Pr.   142,  S.  Rep.  545;  Bell  v.  Bumstead,   14  N    Y 

C.  21  How.  Pr.478;  Schlemmer  v. My-  Supp.  697;    Richards  v.  Bestor,  90  Ala. 

erstein,  19  How.  Pr.  412;   Mills  v.  Thur-  352,  S  So.  Rep.  30. 

by,  11  How.  Pr.  114.  As  to  reviewing  3  As  to  the  time  of  objecting  to  de- 
objections  upon  cause  shown,  Lovell  :•.  positions.  Doane  v.  Glenno,  21  Wall. 
Martin.  12  Abb.  Pr.  17S.  33.351  York  Co.  v.  Central,  etc.,  ( 

1  Smith  v.  Bean,  46   Minn.   13S,  4S  N.  Wall.  107.  1  13;    Shutte  v.  Thompson.  15 

W.Rep.687;  State*.  Leehman(S.D.),  Wall.  151;    Wrighl  0.  Cabot,  89  IS    Y. 

49  N.  W.  Rep.  3;    Triggs  v-  Jones,  \6  570;  Crowell  v.  Western,  etc.,  Bank,  3 

Minn.  277.  48  N.  W.  Rep.  1113;  Com-  Ohio  St.  406, 409;  Lee  v.  Stowe,  57  Tex. 

monwealth  v.  Mead.  153  Mass.  284,  26  144;   Bartleti  ©.    Host.  33   N.    11.    151; 

N.E.Rep.855.     Sec.  generally,  Strat-  Glenn  ©.Clore,  42  Ind.  60;  Jones  t>.  D 

ton  v.  Lockhart,  1  End.  A.pp.  380,  27  N.  etc.,  1    [nd.   109;   Hannibal,  etc.,  ( 

E.  Rep.  715;  Kansas,  etc.,  Co.  w.  Haw-  Moore,  37  Mo.  338;  Graydon  v.  Gaddis, 

ley  (Kan.),  27  Pac.  Rep.  176;  Crawford  ^<<  [nd.  515;  Stull  r.  Howard.  26  End. 


7;;i  ERROR   [N  JUDICIAL   PROCEEDINGS. 

no  doubt  true  that  the  general  rule  is  not  free  from  exceptions, 
and  it  is  also  true  that  it  can  not  govern  where  the  objections 
are  not  known  to  the  party  at  the  time  the  motion  is  interposed. 

§  776.  Jurisdictional  Objections — We  have  elsewhere  shown 
that  objections  to  the  jurisdiction  where  objections  are  neces- 
sary to  save  the  question  must  be  promptly  made  or  they  will 
be  lost  by  waiver.1  It  is  in  general  true  of  objections  to  juris- 
diction, as  it  is  of  other  matters  of  procedure,  that  the  objec- 
tion must  be  so  specific  as  to  inform  the  court  of  the  particular 
grounds  of  the  objection.2  The  well  known  rule  applicable  to 
pleas  or  answers  in  abatement  may  be  taken  as  indicative  of 
the  certainty  required  in  making  objections  to  jurisdiction.3 
We  have  heretofore  directed  attention  to  the  rule  that  where 
there  is  a  mistake  in  selecting  the  remedy,  as,  for  instance,  in 
pursuing  an  equitable  remedy  when  there  was  an  adequate 
legal  remedy,  the  objection  must  be  appropriately  and  specific- 
ally presented  in  the  court  of  original  jurisdiction  or  it  will  not 
be  available  on  appeal.4  As  it  seldom  appears  in  the  complaint 
where  the  defendant's  place  of  residence  is,  the  objection  as  to 
jurisdiction  of  his  person  must  almost  invariably  be  taken  by 
answer  where  the  specific  ground  of  objection  is  that  he  is  sued 

456;   Robinius   v.   Lister,  30  Ind.    142;  was  too  late  to  make  the  objection  on 

National  Bank  v.   Dunn,   106  Ind.  no;  tbe  trial.     The  court    said:     "On   the 

Truman  x'.  Scott,  72  Ind.  258;   Newman  trial    the    point    was    made    that    the 

v.  Manning,  89  Ind.  422;  McGinnis  v.  plaintiff  ought  not  to  maintain  this  suit 

Gabe,  ;S  Ind.  457.  because  he  bad  an  adequate  remedy  at 

1  A  >ifc,  §§  328,  329,  330.  See,  also,  law,  and  it  is  again  urged  on  appeal. 
"Nature  of  jurisdictional  questions."  In  tbe  answers  of  the  several  defendants 
Ante,  §  501.  "Original  objections  to  no  such  objection  was  made.  The  par- 
jurisdiction."  Ante,  §  502,  and  "  Waiv-  ties  having  thus  submitted  to  the  juris- 
er."     Ante,  Pari  II.  Chapter  VI.  diction  of  the  court  it  was  too  late  to 

2  Hadlev  v.  Gutridge,  5S  Ind.  302;  take  the  objection  on  the  trial  that  the 
Campbell  v.  Swasey.  12  Ind.  70.  plaintiff  bad  a    remedy  at   law."     The 

1  We  are,  of  course,  not  speaking  of  cases  of  Le  Roy  v.  Piatt,  4  Paige,  77, 

objections  to  jurisdiction  of  the  general  Town  of  Mctz  v.  Cook,  108  N.  Y.  504, 

subjei  and    Baron    v.   Korn,    127    N.   Y.    224, 

*  Ante.  §§  501,  502.      See,  also,  §  657,  were  cited.      In  the  case  of  Chesapeake, 

"Mistaking  the   remedy — Making  the  etc.,  Co.   v.  Mackenzie   (Md.),  21    Atl. 

error  available."      In  Crisfield   v.    Mm-  Rep.  690.      See  Thomas   v.  Farley  Mf. 

dock,  127  N.  Y.  315,  it  was  held  that   it  Co.,  76  Iowa.  735,  30.  N.  W.  Rep.  S74. 


•     OBJEC  riONS. 

in  the  wrong  county.'  It  is,  of  course,  clear  that  a  defendanl 
may  successfully  assail  the  jurisdiction  of  the  general  subject 
by  demurrer,2  although  he  is  not  hound  to  assail  it  in  that  mode 
for  it  ma}'  he  assailed  at  any  stage  of  the  proceedings.  There 
is  no  difficulty  in  holding  that  where  there  is  no  general  juris- 
diction of  the  subject,  as  for  instance,  where  an  action  of  eject- 
ment is  brought  in  a  court  which  has  no  jurisdiction  whatever 
of  the  subject  of  titles  to  land,  the  objection  may  be  general 
and  may  be  interposed  at  any  stage  of  the  proceedings,  but,  as 
we  have  endeavored  to  show  in  former  paragraphs,  where 
there  is  jurisdiction  over  a  general  subject  or  class,  there  is 
real,  if  not  insurmountable,  difficulty  in  supporting  such  a 
holding.  If  there  is  general  jurisdiction  over  actions  involving 
the  title  to  land  the  fact  that  the  particular  parcel  of  land  lies 
in  a  county  outside  of  the  circuit  does  not  divest  the  general 
jurisdiction  of  the  circuit  court,  although  it  may,  if  the  objec- 
tion is  opportunely  made,  prevent  the  exercise  of  authority  in 
the  particular  instance,  but  to  be  opportune,  the  objection  must, 
as  we  believe,  notwithstanding  the  decisions  to  the  contrary,'' 
be  made  in  the  lower  court.  If,  for  example,  a  plaintiff  should 
bring  an  action  in  Floyd  county  for  land  situated  in  Marion 
county  and  the  defendant  should,  without  objection,  submit  the 
case  for  trial,  we  think  it  clear  that  the  plaintiff  would  not  be 
heard  to  aver  that  the  proceeding  was  coram  nonjudice.  If  he 
could  not  it  is  difficult  to  conceive  how  his  adversary,  who  had 
assented  to  the  jurisdiction,  could  make  an)-  such  averment, 
since  it  is  inconceivable  that  the  proceedings  can  be  treated  as 
a  nullity  as  to  one  party  and  valid  as  to  the  other. 

§  777.  Objections  to  Pleadings — Where  objections  are  made  to 
pleadings  by  motion  the  motion  should  state  the  specific  grounds 
upon  which  it  is  founded,  and  indicate  with  reasonable  certainty 

1  Newell    v.    Gatling,    7     Ind.    147;  94  Ind.  205;     Dashing  v.  State,  7b  1ml. 

Kciscr  :■.  Yandes,  45  Ind.  174;  D.iv  :■.  457;   Blair  v.  Hanna, 87  Ind.  - 
Henry,  104  [nd.324.     Sec  Robertson  :•.        '  Toledo,  etc., Co.  v.  Milligan,  52  Iiul. 

State.  109  Ind.  79.  505;    Jolty     v.   Ghering,    40    End. 

1  Dodson    :•.    Scroggs,   47    Mo.    285;  Loeb  v.  Mathis,  37  Ind. 306.     We  think 

Cones  v.  Ward,  47  Mo.  289;     Doll  :•.  the  doctrine  of  Indianapolis,  etc.,  Co.  v. 

Feller,  16  Cal.  432;    Seavej    V.  Maples.  Solomon.  J3  Ind.  534,  i->  the  true  one. 


736 


ERROR  IN   JUDICIAL   PROCEEDINGS. 


the  relief  sought.1  The  rule  that  objections  must  be  specific  is 
trenched  upon  by  the  provisions  of  the  code  respecting  causes 
of  demurrer,  for  there  can  be  no  doubt  that  the  general  causes 
of  demurrer  which  the  code  authorizes  do  not  always  disclose 
the  particular  grounds  of  objection.  But  the  rule  holds  good 
respecting  demurrers  in  so  far  as  to  preclude  a  party  from  as- 
signing one  of  the  causes  of  demurrer  and  subsequently  insist- 
ing upon  another.2  Where  the  cause  of  demurrer  assigned  goes 
to  parties  the  rule  governs  and  specification  is  required.3 

§  778.  Objecting  to  Jurors — The  better  rule,  and  that  sustained 
by  the  weight  of  authority,  is  that  in  order  to  make  a  refusal  to 
allow  a  challenge  for  cause  available  for  the  reversal  of  a  judg- 
ment, there  must  be  a  specification  of  the  grounds  of  the  chal- 
lenge. It  is  not  enough  to  declare  in  general  terms  that  the 
party  objects  to  the  juror  or  that  he  challenges  the  juror.4     The 


1  Fischer  v.  Coons,  26  Neb.  400,42  X. 
W.  Rep.  41 7;  Rickettsf.  Dorrell,59  Ind. 
427;  Brinkmeyer  v.  Ilelbling,  57  Ind. 
435;  Murphy  •».  Teter,  56  Ind.  545;  Lu- 
cas v.  Smith, 54  Ind.  530;  Hay  v.  State, 
58  Ind.  337;  Mullendore  v.  Silvers,  34 
Ind.  98;  McDuffee  v.  Bentley,  27  Neb. 
380,  43  N.W.  Rep.  123;  Latimer  v.  Sul- 
livan, 30  So.  Car.  in,  8  S.  E.  Rep.  639. 
See  Pierce  v.  Biecknell,  11  Kan.  262; 
Meagher  v.  Morgan,  3  Kan.  372. 

2  Adams  v.  Lamson,  etc.,  Co.,  59 
Hun.  127;  Leedy  v.  Nash,  67  Ind.  311; 
Nesbit  v.  Miller,  125  Ind.  106;  Story  v. 
( >'  Dea,  23  Ind.  326;  Musselman  v.  Kent, 
33  Ind.  452;  Clough  v. Thomas,  53  Ind. 
24;  Evans  v.  Schafer,  119  Ind.  49;  Ed- 
wards v.  Beall,  75  Ind.  401;  Borchus  v. 
Huntington,  etc.,  Assn.,  97  Ind.  1S0; 
Bond  v.  Armstrong,  88  Ind.  65;  Board 
v.  Kimberlin,  10S  Ind.  449;  Dunn  v. 
Tousey,  80  Ind.  2S8;  Johnson  School 
Township  v.  Citizens  Bank,  81  Ind.  515. 
The  proper  cause  must  be  assigned  or 
the  demurrer  will  be  unavailing.  Peden 
v.  Mail,  11S  Ind.  556,  20  N.  E.  Rep.  493; 
Firestone  v.  Werner,  1  Ind.  App.  293, 
27  \.  E.  Rep.  623;  Campbell  v.  Camp- 


bell, 121  Ind.  17S.  23  N.  E.  Rep.  Si; 
Whipperman  v.  Dunn,  124  Ind.  349,  24 
N.  E.  Rep.  1045.  See  Wilhoit  v.  Cun- 
ningham, 87  Cal.  453,  25  Pac.  Rep.  675; 
Sargent  v.  Cunningham  (Cal.),  25  Pac. 
Rep.  677;  Heeser  v.  Miller,  77  Cal.  192; 
Morris  v.  Beall,  85  Ala.  59S,  5  So.  Rep. 
252;    Marie  V.  Garrison,  83  N.  Y.  14. 

3  Hodge  v.  Drake,  60  Hun.  577,  14  X. 
Y.  Supp.  355;  Kelley  v.  Love,  35  Ind. 
106;  Van  Sickle  v.  Erdelmeyer,  36  Ind. 
202;  Winfield  Town  Co.  -'.Maris,  11 
Kan.  128;  Cookerly  V.  Duncan,  87  Ind. 
332;  Dewey  v.  State,  91  Ind.  173;  Gard- 
ner v.  Fisher,  S7  Ind.  369;  Williams  v. 
State,  87  Ind.  527. 

4  Drake  v.  State,  53  N.  J.  L.  23,  20 
Atl.  Rep.  747;  State  v.  Muncrath,  78 
Iowa,  26S,  43  N.  W.  Rep.  211;  People 
v.  Ilopt,  4  Utah,  247,  9  Pac.  Rep.  407; 
Mann  V.  Glover.  14  X.  J.  L.  195;  PeOr 
pie  v.  Reynolds,  16  Cal.  12S;  Stale  v. 
Knight,  43  Me.  11;  State  v.  Squaires,  2 
Nev.  226;  Paige  v.  O'Xeal,  12  Cal.  4S3; 
Wilson  v.  People,  94  111.  299;  People 
v.  Doe,  1  Mich.  451;  State  v.  Dove,  10 
Ired.  L.  (X.  C.)  469;  Jones  v.  Butter- 
worthy  N.J.  345;  Stephenson  7'.  Stiles, 


OBJECTIONS.  7:;7 

cases  upon  this  question  are  in  conflict,  but  the  rule  we  have  stated 

is  the  onlv  one  that  is  supported  by  principle,  and  it  is  the  only 
one  that  is  consistent  with  the  decisions  in  analogous  ca 
The  considerations  which  require  the  specification  of  the  grounds 
of  an  objection  apple  quite  as  forcible  to  challenges  of  jurymen 
for  cause  as  to  objections  to  evidence,  instructions  or  pleadings. 
The  spirit  of  the  code  is  to  secure  specilic  statements  from  an 
objecting  party  and  thus  enable  the  adverse  party  and  the  court 
to  understand  the  precise  question  involved.  The  record  must 
show  the  objections,  and,  where  they  are  based  upon  the  state- 
ments of  the  juror  himself,  all  of  his  examination,  and  not 
merely  part  of  it,  should  be  appropriately  brought  into  the 
record.1  This  doctrine  is  in  harmony  with  the  general  rule 
which  requires  that  the  whole  of  a  series  of  instructions  be 
brought  into  the  record,  and  is  the  only  one  consistent  with 
principle,  since  true  principle  demands  that  all  of  the  informa- 
tion placed  before  the  trial  court  shall  be  brought  before  the 
appellate  tribunal.  This  principle  requires  that  where  there  is 
evidence,  whether  in  the  form  of  affidavits  or  of  oral  testimony, 
it  shall  be  properly  carried  into  the  record,  so  that  the  appellate 
tribunal  maybe  able  to  understand  the  precise  question  decided 
by  the  trial  court,  and  the  grounds  upon  which  it  proceeded.2 

§  779.  Specifying  Objections  to  Evidence— It  is  no  more  than 
reasonable  to  assume  that  counsel  who  object  to  evidence  are 
prepared  to  assign  specific  reasons  for  their  objections,  and  it 
would  be  unreasonable  to  require  the  court  in  the  progress  of  a 
trial  to  search  for  the  grounds  of  objection.3  There  is  sub- 
stantial agreement  upon  the  general  question  and  the  authori- 

3  X.J.  L.  543.     In  Freeman  V.  People,  eases  seem  to  hold  a  different  doctrine. 

4  Denio.  9,  31,  it  was  said:     "  When  a  Lohman  v.  People,  1  V  Y.  579    R 
juror  is  challenged  for  principal  cause,  v.    Knurr-.    i|    Wend.    131;  People   v. 
or  for  favor,  the  ground  of  the  challenge  Mather,  4  Wend.  229;   Mechanics,  etc., 
should  be  distinctly  stated;   tor  without  Bank  v.  Smith.  [9  Johns.  115. 

this   the   challenge  is   incomplete  and  'Johnson   :.   Holliday,  79  Ind.  151; 

may    be    wholly   disregarded    by    the  Indianapolis,    etc.,  Co.    1  .    Pitzer,  109 

court.     It  is  notenough  to  say,  '  I  chal-  Ind.  179. 

lenge  tor  principal  cause  or  favor,1  and  *  Lockhart  v.  State, 9a  Ind.  452;  Shu- 
stop  there;  the  cause  of  the  challenge  lar  0.  State.  105  Ind 
must  be  specified."     Other  New  York  '  Clem  v.  Martin.  34  Ind.  341.  343. 

47 


738 


ERROR    1  s    H   Did  M     PR<  ICEEDINGS. 


ties  are  very  numerous.1  The  rule  is  qualified  or  limited  by 
some  <>t  the  courts,  for  it  is  the  doctrine  of  some  of  the  cases 
that  where  the  grounds  of  the  objection  are  disclosed  by  the 
evidence  itself  there  is  no  necessity  for  specification.      It  seems 

to  US  that  there  should  he  no  limitation  or  qualification  of  the 
rule.  The  attempt  to  limit  creates  useless  exceptions,  estab- 
lishes arbitrary  distinctions  and  builds  up  a  system  of  particular 
instances.  Such  a  system  has  nothing  to  commend  it,  and 
in  practice  works  evil  for  the  reason  that  it  consumes  the  time 
of  the  court  in  determining  whether  a  particular  case  is  or  is 
not  within  the  rule.  The  rule  is  a  wholesome  and  practical  one 
.md  is  not  technical.2 


§  780.  Separating  Competent  from  Incompetent  Evidence — Where 
testimony  is  in  part  competent  and  in  part  incompetent  the  ob- 


1  We  citea  few  of  the  many  decisions 
upon  thi6  question:  People  v.  Nelson, 
85  Cal.  i-'i,  -'|  Pac.  Rep.  [006;  Kansas 
City,  etc.,  Co.  v.  Smith,  90  Ala.  25,  8 
So,  Rep.  1;;  Smith n.  McCarthys  111. 
Api>.  176;  Christian  v.  State  (Ga.),  [2 
S.  E.  Rep.  645;  Litten  0.  Wrighl  School 
Township,  127  [nd.  81,  26  N.  E.  Rep. 
5<>-;  Stringer  v.  frost,  110  [nd.  177; 
Bund ^  ;■.  Cunningham,  107  tnd.  360; 
Chapman  v.  Moore,  107  Ind.  223;  Ohio, 
etc.,  Co.  p.  Walker,  113  [nd.  196,  and 
cases  cited.  Babb  .-  Missouri  Uni- 
versity, 40  Mo.  A.pp.  173;  Everetl  v. 
Williamson,  107  V  C.  204,  [2  S  E. 
Rep.  187;  A.bbott  v.  Chaffee,  83  Mich. 
256,  17  V  W.  Rep.  216;  Kenosha  Stove 
Shedd  (Iowa),  ^8  N.  W.  Rep. 
Ward©.  Wilms  (Colo.),  -7  Pac- 
Rep.  247;  Henry  p.  Dean,  6  Dak.  78; 
Smith  p.  Morrill,  39  Kan  665,  [8  Pac, 
Rep  915;  Tucker  ©.Jones,  8  Mont.  225, 
i<i  Pa<  .  R<  p  57 1 ;  Queen  1  ns.  Co.  v. 
Studebaker,  117  1  nd.  1 16;  I  [elena  o. 
A  Iberto  »e,  8  M  ont.  499;  Bulvt  Lnkle  p. 
Cramer,  30  So.  Car.  153,  8  S.  E.  Rep. 
,  District  of  Columbian.  Woodbury, 
136  l.  s.  150;  Prindle  v.  Campbell,  7 
Ma<  kej  (  D,  C      59S;   Prather  v.  Ram 


bo,  1  Blackf.  189;  Hall  v.  Gittings,  2 
Harr.  &  J.  1  u. 

J  The  general  subjecl  is  well  discussed 
in  Rush';'.  French,  1  Ariz.  99,  where  a 
greal  number  of  cases  are  cited.    In  the 

course  of  the  opinion  it  was  said:    "  The 

objed  of  requiring  grounds  of  objection 
to  be  stated  which  may  seem  to  be  a 
technicality  is  really  to  avoid  techni- 
calities ami  prevent  delay  in  the  admin- 
istration of  justice.  When  evidence  is 
offered  to  which  there  is  some  objection, 
substantial  justice  requires  that  the  ob- 
jection be  specified,  so  that  the  party 
offering  the  evidence  can  remove  it  if 
possible,  and  lei  the  ease  be  tried  on  its 
merits.      It"  it    i-  objected   that  the  form 

is  leading,  the  form  may  be  changed; 
if  thai  the  evidence  is  irrelevant,  the 
relevancy  may  be  shown;  it'  that  it 
is  incompetent,  the  incompetency  may 

be    removed;    it"    that    it    is  immaterial, 

its  materiality  may  be  established;  if  to 
the  order  ^\'  introduction,  it  may  in- 
withdrawn  and  offered  at  another  time; 
and  thus  appeals  could  be  often  saved, 
delays  avoided  and  substantial  justice 
administered." 


OBJ  E<    in' 

jecting  party  must  address  his  objection  to  the  part  that  is  in- 
competent. He  can  not  impose  upon  the  court  the  dut}  oi 
sifting  the  bad  from  the  good.  Ii  follows  thai  an  objection  to 
evidence  where  pari  is  competent  and  part  incompetenl  may 
be  overruled  without  available  error,  in  cases  where  counsel 
interpose  the  objection  to  all  the  evidence.'  The  court  may, 
if  it  so  elects,  undertake  the  work  of  effecting  a  separation  but 
it  is  under  no  obligation  to  do  so,  and  where  there  is  no  objec- 
tion requiring  the  performance  of  a  duty  as  a  matter  ol  right 
there  can  be,  as  a  general  rule,  no  available  error. 

§  781.  Practice  where  the  Question  is  Proper  hut  the  Answer  In- 
competent— Where  a  question  is  proper  it  is  obvious  that  an  ob- 
jection to  it  will  be  unavailing.     Bu1  a  proper  question  does 

not  give  validity  to  an  improper  answer,  ami  there  must  be 
some  mode  in  which  the  answer  van  be  reached.  That  mode 
is  by  moving  to  strike  out  the  incompetent  answer.  Where 
part  of  the  answer  is  competent  and  part  incompetent,  then, 
upon  the  principle  stated  in  a  former  paragraph,  the  motion  to 

strike  out   must    be   limited    to   so    much  of  the   answer  as  is  in- 
competent.     It   may   not   be   amiss   to    suggest    that    where   the 
,     question  is  improper  the  objection  should  be  at  once  interposed 

and  addressed  to  the  question.  This  is  the  sale  practice  tor  it 
is  sometimes   hazardous   to   take   the  chances  of  a  favorable  or 


»  McGuffey    v.  McClain    (Ind.   Sup.  77  c ; - 1 .  1 . .  • .  |S  I     Rep  ;    .     Hai -ml 

\   E.  Rep.       ;  Jones  v.  State,  v.  Schiff,  too  V  C.  [61,  6  S    E   Rep. 

,is  [nd.39;   Pape  v.  Wright,  ti6  [nd.  753;  People  v.  Rose,  5a  Hun.  ;;,   Bad- 

502;   Daj        Henry,  104  Ind.  324;  City  ders  1     Davis,         \  ,    6  So.  Rep. 

ol  rerre  Haute  v.  Hudnut,  112  Ind.  542;  834;   Holmes  v.  Turners  Fall 

Waymire v. Lank,  121  Ind.i;  St.Louis,  Mass.  535,  23  N    E    Rep    [0      Smo 

etc.,  Co.  w.Hendricks,   \8  Ark.  177,  S.  Eslava,  2  S   I  \       De< 

C.  ;    \m.  St.  Rep.  220;    Pettigrev    v.  310;   Wallis  v.  Randall,   Ii  N.^     164. 

ium,n  Mel.  |34,S  C.6g   \-<     Dei  *  Gduld       Day,94  U   S    ^5;  Barnes 

ai2,  and   note;    Shatto  v.  Crocker,  s;         '  '•''■■  ]on 

Cal. 629,  25  Pac   Rep. 921;  Bell  v  Km-  118  [nd  State,  118 

dall  (Ala  |,  s  So.  Rep    ^92;   Fonville  v.  [nd 

State,  91  Ala.  39, 8  So.  Rep. 688;  South  |.>vvv    Rep.  106;    People  1    Wllkin- 

v.  State, 86  Ala.  617, 6  So.  Rep.  52;   Las  son,  60  Hun.  58a,  14   N    Y    Sup| 

Biter   v.  Simpson,   7s  Ga    61,    ;   S    E  Shepardv  New  York,  etc.,  Co.,  60  Hun. 
Rep.  243;  Powell  v.  Augusta,  el      I  I    V.  Supp.  175. 


^Q  ERROR  IN  JUDICIAL  PROCEEDINGS. 

harmless  answer,  inasmuch  as  the  failure  to  promptly  object  to 
the  question  may  be  treated  as  a  waiver  of  objection. 

§  782.   Specification  of  Objections  to  Conduct  of  Parties  and  Conn- 
gel The  general  doctrine  that  specific  objections  must  be  stated 

applies  to  the  conduct  of  parties  and  counsel.1  The  question 
in  such  cases  assumes  a  peculiar  form,  but  the  underlying  prin- 
ciple is  the  same.  A  general  objection  in  matters  of  procedure, 
it  has  been  said,  is  "unworthy  of  consideration."  This  is 
true,  not  only  of  particular  phases  of  procedure,  but  of  all,  for 
a  denial  of  the  principle  is  an  assertion  that  there  can  be  no 
such  thing  as  a  consistent  system  of  procedure,  and  this  asser- 
tion can  not  be  made  good.  There  is,  therefore,  reason  for  re- 
quiring a  party  who  seeks  to  make  the  misconduct  of  counsel 
or  parties  available  for  the  reversal  of  a  judgment  to  specify 
the  grounds  of  his  objection. 

1  Morrison  v.  State,  76  Ind.  335,  343;  detached   statements,  because   we   can 

Coble  v.  Eltzroth,  125  Ind.  429;  Tabor  not  give  space  for  extended   extracts. 

v.  fudd,  62  X. II. 288;  Dowdell  v.  Wil-  "Counsel  are   held  to    the  grounds   of 

cox,  64  Iowa,  721.     See,  generally,  Pow-  objection  stated  at  the  time  they  call 

Mitchell,   77   Me.  361;    State  v.  for  a  decision,  because  they    are  sup- 

Degonia,  69  Mo.  485.     In  the  case  first  posed  to  know  the  law  of  their  case, 

cited  it  was  said,  in  speaking  of  objec-  and  if  they  do  not  offer  objections  they 

tion  to  the  conduct  of  counsel  in  argu-  are  supposed  to  waive  them.     It  is  their 

ment:     "The  reasons  for   each  objec-  business  to  be  attentive  on  a  trial  and 

tion  or  exception  must  be  specified  at  if  they  miss  a  point  they  must  lose  it. 

the  time  and  with  reference  to  the  end  They  must  stand  or  fall  upon  the  case 

sought  to  be  attained."     What  was  said  they  made  below,  for  this  court  is  not  a 

in  Rush  v.  French,   1    Arizona,  99,  124,  forum    to   discuss  new   points   of  this 

is   applicable   to    all    matters    of   trial  character,  but  simply  a  court  of  review 

procedure,  although  said  with  especial  to  determine  whether  the  rulings  of  the 

reference    to    objections   to    evidence,  court  below  on  the  case  presented  were 

We  quote  from  the  opinion  in  that  case,  correct  or  not." 


CHAPTER  XII. 


EXCEPTIONS. 


7S3.    Nature  and  office  of  an  excep- 
tion. 

784.  When  an  exception  is  required. 

755.  Time  of  taking  exceptions. 

756.  The  exception  must  immediate- 

ly follow  the  decision. 

787.   The  exception  must  be  addressed 

to  the  specific  ruling. 

785.  Joint  exceptions. 

789.    Exceptions  can  not  be  taken  to 
several  rulings  in  gross. 


790.  A   party  must  rely  on  his  own 

exceptions. 

791.  Excepting  to  instructions. 

792.  Noting    exceptions    to    instruc- 

tions. 

793.  Conclusions  of  law  stated  on  a 

special  finding  of  facts. 

794.  Specifying  error  on  exceptions 

to  conclusions  of  law. 

795.  Ruling  on  a  motion  for  new  trial. 

796.  Questioning  judgments. 


§  783.  Nature  and  Office  of  an  Exception— In  the  first  paragraph 
of  the  preceding  chapter  we  outlined  the  difference  between  an 
exception  and  an  objection,  and  in  doing  so  necessarily  spoke 
of  the  general  nature  of  an  exception,  but  it  is  necessary  to  here 
mark  somewhat  more  carefully  the  distinctive  features  of  an 
exception  inasmuch  as  confusion  can  not  well  be  avoided  with- 
out doing  so.  An  exception,  as  we  here  employ  the  term  "  ex- 
ception," means  a  formal  notice,  or  statement,  following  a  rul- 
ing made  in  the  formation  of  issues  or  in  the  progress  of  a  trial 
or  disposition  of  a  cause,  indicating  an  intention  to  reserve  a 
question  upon  the  ruling  for  future  consideration.1     An  excep- 


1  Our  code  thus  defines  an  exception: 
"An  exception  is  an  objection  taken  to 
a  decision  of  the  court  upon  a  matter 
of  law."  R.  S.  1SS1,  §625.  It  is  evi- 
dent from  this  that  an  exception  follows 
a  ruling  and  docs  not  precede  it  as  does 
an  objection.  But  while  the  statutory 
definition  seems  to  imply  that  an  ex- 
ception is  always  an  objection,  the 
practical  construction  given  to  it  does 
not  warrant  this  conclusion.  There  are. 
however,    cases    where   an   exception    is 

(' 


an  objection,  as,  for  instance,  in  cases 
of  exceptions  to  conclusions  of  law 
stated  upon  a  special  finding  of  facts. 
Ordinarily,  however,  an  objection  pre- 
cedes an  exception  and  presents  the 
question  \o\  decision,  and  the  excep- 
tion simply  saves  the  question  upon  the 
ruling  or  decision  for  future  considera- 
tion.    In  Kleinschmidt  v.  McAndrews, 

117   l".  S.  282,  286,    the    Supreme  Court 

of  the  United  States  said:    "But  n 
ception  to  the  ruling  of  a  court  can  be 
11  I 


742  ERROR    [N  JUDICIAL  PROCEEDINGS 

lion  implies  that  the  party  who  takes  it  intends  to  make  the 
ruling  available  as  error  in  a  proceeding  calling  the  judgment 
in  review,  or  upon  appeal.  An  exception  is  not  required  to  be 
staled  in  formal  words,  for  the  declaration  that  the  party  ex- 
cepts implies  that  he  means  to  save  the  questions  arising  on 
the  ruling  or  decision.1  The  law  gives  effect  to  the  exception, 
and  it  is  not  necessary  to  state  the  specific  grounds  upon  which 
it  is  based  ;  that  is  done  by  the  objection  in  all  cases  where  an 
objection  is  required.  An  exception  in  chancery  practice  and 
in  some  special  proceedings  is  a  different  thing  from  an  exception 
in  ordinary  civil  or  criminal  procedure,  for  the  office  of  the  latter 
is,  as  a  general  rule,  to  save  questions  on  a  ruling  or  decision  and 
not  to  present  questions  for  decision.  Where  the  record  proper, 
as  in  the  case  of  demurrers  to  pleadings,  discloses  the  grounds 
of  objection  the  office  of  the  exception  is  to  give  notice  that 
questions  are  saved  or  reserved,  and  in  such  cases  the  record 
proper  exhibits  the  grounds  upon  which  the  exception  rests, 
but  where  the  record  proper  does  not  exhibit  the  specific 
grounds  of  objection,  an  exception  performs  no  useful  function 
unless  there  is  a  preceding  motion  or  objection  stating  specific 
grounds  of  objection.  Nor  will  such  an  objection  be  available 
unless  the  specific  grounds  of  objection,  the  ruling  thereon  and 
the  matters  essential  to  a  full  understanding  of  the  decision  are 
brought  into  the  record  as  the  law  requires.  The  failure  to 
opportunely  except  where  an  exception  is  required  is  always 
an  effective  waiver. 

§  784.   When  an  Exception  is  Required — An  exception  must  be 
taken  in  all  cases  save  those  in  which  the  questions  are  such  as 


taken  until  after  it  is  made,  and  it  is  '  Our  code  provides  that:  "No  par- 
plain,  therefore,  that  what  is  meant  by  ticular  form  of  exception  is  required." 
the  section  of  the  code  referred  to  is,  R.  S.  1881,  §  627.  This  statement  ex- 
that  the  exception  must  be  to  some  de-  presses  the  general  rule.  The  law  gives 
cision  or  ruling  of  the  court,  occurring  force  to  an  exception  and  the  implica- 
hc  tore  the  final  judgment  is  rendered,  tion  always  is  that  the  exceptor  chal- 
and  not  that  the  exception  must  be  lenges  the  correctness  of  the  ruling  or 
taken  before  the  decision  excepted  to  decision  and  intends  to  subsequently 
has  been  made."  make  the  ruling  a  ground  for  assailing 

the  judgment. 


EXCEPTIONS. 


743 


mav  be  first  made  on  appeal.'  We  have  elsewhere  considered 
the  subject  of  first  making  questions  on  appeal.2  It  is  o 
necessary  to  say  here  that  where  there  is  no  cause  of  action  or 
no  jurisdiction,  there  is  no  necessity  for  reserving  an  exception. 
The  case  of  a  judgment  by  default  falls  within  this  general 
classification,  for  in  such  cases  jurisdiction  of  the  person  must 
appear  from  the  record.  In  the  event  of  a  failure  to  show  juris- 
diction of  the  person  in  the  case  of  a  judgment  by  default,  the 
inference  is  that  jurisdiction  did  not  exist.  But,  as  we  have 
elsewhere  shown,  where  the  record  shows  notice,  although  de- 
fective or  irregular,  the  inference  of  want  of  jurisdiction  does 
not  necessarilv  arise,  but  it  does  arise  where  there  is  an  entire 
absence  of  notice.3 


§  785.  Time  of  Taking  Exceptions — There  is  only  one  time  at 
which  an  exception  can  be  effectively  taken  and  that  is  at  the  time 
the  ruling  is  made.4  It  is  one  thing  to  except  and  quite  another 
to  secure  time  in  which  to  reduce  an  exception  to  writing.  Time 
may  be  given  in  which  to  reduce  an  exception  to  writing,  but 
time  can  not  be  given  in  which  to  except.5    It  is  held,  and  with 


1  The  decisions  upon  this  question 
are  so  numerous  and  the  rule  so  firmly 
established  that  we  regard  it  as  unnec- 
essary to  cite  them. 

2  Ante,  Chapter  XXIII. 

3  Ante,  §§  328,  334,  inclusive. 

4  City  of  La  Porte  v.  Organ  (Ind. 
App.),  30  N.  E.  Rep.  2;  Hull  v,  Louth. 
109  Ind.  315;  Sohn  v-  Marion  Gravel 
Road  Co.,  73  Ind.  77;  Goodwin  v. 
Smith,  72  Ind.  113;  Horner  v.  Hoadly, 
97  Ind.  600;  Cincinnati,  etc.,  Co.  v. 
Leviston,  97  Ind.  4S8;  Alcorn  v.  Mor- 
gan,  77  Ind.  1S4;    Rhine  v.   Morn 

Ind.  Si,  and  cases  cited;  Boyce  v.  Gra- 
ham, 91  Ind  420;  Blacketerv.  House,  67 
Ind.  414;  Leyner  v.  State,  8  Ind.  490; 
Johnson  v.  Bell,  10  Ind.  303;  Newton  v. 
Tvner,  12S  Ind.  466,  27  N .  E.  Rip.  168; 
State  v-  Probasco,  46  Kan.  310.  26  Pac. 
Rep. 749;  Fifth  Avenue  Bank  v.  Webber, 
27  Abb.  X.  C.  1;  Thomas  v.  Griffin,  1 
Ind.  App.457, 27N.  E.Rep.  754;  Sp< 


er  v.  Handley,  151  Mass.  313,  23  N.  E. 
Rep.  S40;  Stater.  Movers.  99  Mo.  107.  12 
S.W.  Rep.  516;  Turner  ©.Yates,  16  I  low. 
(U.  S.)  14,  29;  Stewart  v.  Huntington 
Bank,  11  Sergt.  &  R.  267,  S.  C.  14  Am. 
Dec.  62S;  Hunnicut  v.  Peyton,  102  U. 
S.  333,  354;  United  States  p.  Carey,  1 10 
U.  S.  51;  Bull  v.  Commonwealth,  14 
Gratt.  613;  Watson  p.  Smith,  2S  Tex. 
App.  34,  12  S.  W.  Rep.  404;  Comparet 
v.  Hedges,  6  Blackf.  416;  Gallagher  p. 
Southwood,  1  Kan.  143. 

6  In  Coan  p.  Grimes,  63  Ind.  21,  26,  it 
was  said:  "It  is  claimed  that  it  was 
within  the  discretion  of  the  court  to 
grant  lease  to  the  appellant  to  except, 
after  the  decision  was  made,  and  that 
the  denial  of  such  leave  was  an  abuse  1  if 
discretion.  We  think  that  the  court  had 
no  such  discretion.  The  statute  is  man- 
datory. The  party  objecting  must  ex- 
cept at  the  time  the  decision  is  made. 
It  would   have   been   error,  it"  the  court 


744  ERROR  IN  JUDICIAL  PROCEEDINGS. 

reason,  that  the  exception  must  follow  the  ruling  challenged, 
and  that  notice  in  advance  of  an  intention  to  except  is  not  suf- 
ficient.1 

§  786.   The  Exception  must  Immediately  Follow  the  Decision — The 

purpose  of  an  exception  is  to  give  the  court  and  the  adverse 
party  notice  that  the  exceptor  intends  to  hold  to  his  objections 
to  the  particular  ruling.  It  is,  therefore,  essential  that  the  ex- 
ception should  be  taken  before  other  rulings  aire  made.  This 
doctrine  was  lono;  since  declared.2  It  is  to  be  understood  that 
the  exception  is  generally  directed  to  the  ruling  and  not  to  an 
act,  event,  or  occurrence.  Thus,  if  a  court  should  send  a 
bailiff  into  the  jury  room  to  instruct  the  jury,  the  objection  is 
opportune  if  promptly  made  upon  a  discovery  of  the  error  and 
an  exception  to  a  ruling  denying  a  new  trial  would  save  the 
question,  provided  the  motion  specifies  the  proper  cause.  So, 
if  jurors  misconduct  themselves,  the  objection  made  imme- 
diately after  the  discovery  of  the  misconduct  would  be  saved 
by  an  appropriate  motion  for  a  new  trial,  followed  by  a  proper 
exception.3  But  when  a  ruling  is  announced  the  exception 
must  be  at  once  taken.  Thus,  where  a  ruling  on  demurrer  is 
made,  the  exception  must  be  taken  at  the  time.4     So,  where  a 


had  allowed  the  appellant  over  the  ap-  berger   v.    State,    5    Ind.  300;   State  v. 

pellee's   objection  to  except  to  the  de-  Bartlett,  9  Ind.  569. 

cision   two    days    after    it   was    made."  3  Polin  v.  State,  14  Neb.  540;  Barlow 

Kopelke    v.     Kopelke,     112    Ind.   435;  v.  State,  2 Blackf.  114;  Henningc.  State, 

Weis  v.  City  of  Madison,  75  Tnd.  241;  106  Ind.  3S6,  393. 

Kinsey  v.  Satterhwaite,  SS  Ind.  342.  *  Niven  v.  Burke,  82  Ind.  455;   Fox  v. 

1  Gregory  v.  Dodge,  14  Wend.  593,  Town  of  Monticello,  S3  Ind.  483;  Burk- 
affirming  the  decision  reported  in  4  ham  v.  Burk,  96  Ind.  270;  Brownlee  v. 
Paige,  557.  Goldthait,   73   Ind.  4S1;   State  v.  Mus- 

2  The  court  in  Jones  v.  Van  Patten,  3  tard,  So  Ind.  2S0;  Wales  v.  Miner,  89 
Ind.  107,  declared  that  it  "  is  a  well  es-  Ind.  11S.  In  the  case  of  the  American 
tablished  rule  that  erroneous  steps  in  the  Insurance  Co.  t>.Yearick,  78  Ind.  202,  at 
progress  of  a  cause  are  waived,  unless  the  time  the  ruling  upon  demurrer  was 
excepted  to  before  additional  steps  are  announced,  no  exception  taken,  at  the 
taken."  This  doctrine  was  expressly  next  term  the  party  who  demurred  de- 
approved  in  Dickson  v.  Rose,  S7  Ind.  clared  that  he  would  not  amend,  but 
I"-  Corey  v-  Rhineheart,  7  1ml.  291;  would  abide  by  his  complaint,  ami  it 
Wheeler    v.  State,  S   Ind.    113;   Horn-  was  held  that  no  question  was  presented, 

although  he  then  excepted. 


EXCEPTIONS.  745 

ruling  is  made  upon  evidence,  the  time  for  excepting  is  the 
time  the  ruling  is  declared. 

§  787.   The  Exception  must  be  Addressed  to  the  Specific  Ruling— 

An  exception  must  be  directed  against  a  designated  ruling.  A 
party  can  not  except  to  one  ruling  and  make  his  exception 
available  against  others.  This  is  true  although  the  ruling  to 
which  the  exception  is  addressed  may  include  the  one  sought 
to  be  brought  under  review.1 

§  788.  Joint  Exceptions — Where  two  or  more  parties  unite  in 
an  exception  it  must  be  well  taken  as  to  all  or  it  will  be  una- 
vailing.2 This  doctrine  is,  as  we  have  shown  at  another  place, 
one  of  wide  scope.  The  rule  is  necessary  for  the  sake  of  con- 
sistency, and  rests  on  principle. 

§  789.   Exceptions  can  not  be  Taken  to  Several  Rulings  in  Gross 

— To  be  effective  an  exception  must  be  taken  to  each  ruling  as 
it  is  made.3  True  principle  requires  that  exceptions  be  so  taken 
that  there  shall  be  no  doubt  as  to  the  specific  ruling  sought  to 
be  reserved  for  review  and  no  necessity  to  hunt  for  it  during 
the  progress  of  the  cause.4  The  practice  of  taking  obscure  or 
general  exceptions  has  been  strongly  condemned.5 

1  State  v.  Weaver,  123  Ind.  512;  must  be  taken  to  each  ruling  sepa- 
Bouknight  r.  Brown,   16  So.  Car.  155,     ratelv." 

164;   State  v.  Turner,  iS  So.  Car.  103,         «  Carroll    v.  Little,  73  Wis.  52.  40  V 

104;  McDaniel  v.  Stokes,  19  So.  Car.  W.  Rep.  5S2;  Stater.  Leaver.  62  Wis. 

60,  61;  Lewis  v.  New  York,  etc.,  Co.,  3S7.  22   V  W.  Rep.  576;    Buffalo,   etc., 

123  N.  Y.  496.  v.  Phillips,  67  Wis.  129,  30  N.  W.  Rep. 

2  Boslev  v.  National,  etc.,  Co.,  123  N.  295.  In  the  case  of  Crocker  v.  Currier, 
Y.  550,  556;  Murray  v.  Usher,  117  N.  65  Wis.  662,  j;  N.  W.  Rep.  825,  it  w  is 
Y.  S42.  held   that   exceptions    taken   before   a 

3  Wilson  v.  Wolfer,  8  Ind.  398.  In  referee  must  be  renewed  in  the  trial 
Levner  v.  State,  S  Ind.  490,  493,  it  was  court  or  they  will  not  be  available  on 
said:     "Exceptions  are  not  to  be  thus  appeal. 

taken  in  gross  to  several  rulings;  the  5  In  Turner  v.  People,  33   Mich 

exception  must  be  taken  to  each  ruling  382,  it  was  declared   that:      "The  prac- 

as  it  arises  on  the  trial."    Johnson  v.  tice  of  taking  general  and  obscure  ex  - 

McCulloch,  89   Ind.    270.    -1:;.    asserts  ceptions  at  the  moment,  in  order  to  en- 

the  same  doctrine,  and  so  dors  Western  able  counsel  on  subsequenl    critical  ex- 

Union  Tel.  Co.  ».  Trissal,  98  Ind.  566,  amination    to   raise    points    under   the 

570.     Tn  Walter  v.  Walter.  1  17  Ind.  247,  exceptions  which  have  never  been  SUg- 

the  rule  was  thus  stated:     "  Exceptions  gested  at  all  to  the  minds  of  the  judge, 


746 


ERROR   INJUDICIAL   PROCEEDINGS. 


§  790.  A  Party  must  Rely  on  His  own  Exceptions— A  party  must 
rely  on  the  exceptions  he  himself  takes.1  He  can  not  make 
those  taken  by  his  adversary  available.  It  is  but  fair  to  the 
court  that  it  should  know  from  what  quarter  the  exception 
comes,  for  the  character  and  effect  of  an  exception  depend 
in  no  small  degree  upon  the  party  by  whom  it  is  taken. 

§  791.  Excepting  to  Instructions— A  party  is  not  bound  to  ob- 
ject to  instructions,  but  he  is  required  to  opportunely  and  ap- 
propriately except  to  them.  It  has  been  finally  held  by  our 
court,  after  much  wavering,  that  the  exception  must  be  taken  to 
each  instruction.2  This  was  the  original  doctrine  of  the  court,-1 
but  it  was  departed  from.  It  is  the  doctrine  sustained  by  the 
great  weight  of  authority.1  The  rule  respecting  the  specifica- 
tion of  instructions  given  has  been  applied,  and  rightly  as  we 
think,  to  the  refusal  to  give  instruction,  the  court   adjudging 


is  objectionable  on  manv  grounds,  and 
is  contrary  to  the  theory  upon  which 
points  are  allowed  to  be  raised  on  ex- 
ceptions." See,  also,  Bain  v.  White- 
haven, etc.,  Co.,  3  H.  L.  Cases,  i,  16; 
Jones  v.  Osgood,  2  Selden,  233;  Insur- 
ance Co.  v.  Lea,  21  Wall.  158;  Adams 
v.  State,  25  Ohio  St.  584^  587.  Where 
an  exception  is  not  preceded,  as  it  usu- 
ally is.  by  specific  objections,  there 
must,  as  a  general  rule,  be  specification, 
but  as  we  have  heretofore  shown,  where 
the  preceding  objection  or  motion 
makes  the  proper  specification  a  general 
exception  is  all  that  is  required. 

1  Amonett  V.  Montague,  63  Mo.  201; 
Bingham  v.  Stage,  123  Ind.  2S1. 

3  Ohio,  etc.,  Co.  v.  McCartney,  121 
Ind.  385,  3S7;  Wallace  v.  Exchange 
Bank,  126  Ind.  265.  26  X.  E   Rep.  175. 

3  Garrigus  v.  Bennett,  9  Ind.  52S; 
Elliott  v.  Woodward,  [8  Ind.  1S3;  State 
I'.artlett,  9  Ind.  569;  Branham  v. 
State,  11  Ind.  553.  The  doctrine  of 
such  cstscs  as  Bartholomew  v.  Langs- 
dale,   35    Ind.  27S.  has    been    tacitly    re- 


pudiated in  practice  and  it  is  expressly 
denied  in  Ohio,  etc.,  Co.  v.  McCartney, 
121  Ind.  3S5.  See,  also,  Jones  v.  Lay- 
man, 123  Ind.  569. 

4  Beavor  v.  Taylor,  93  U.  S.  46;  Rog- 
ers v.  The  Marshall,  1  Wall.  644;  Har- 
vey v.  Tyler,  2  Wall.  32S;  Walsh  v. 
Kelly,  40  X.  Y.  556;  Lincoln  v.  Clatlin, 
7  Wall.  132;  Burton  v. West  Jersey,  etc., 
Co.,  114  U.  S.  574;  Connecticut,  etc., 
Co.  v.  Union  Trust  Co.,  112  U.  S.  250, 
261;  Behrens  v.  Behrens,  47  Ohio  St. 
323,  2^  X'.  E.  Rep.  209;  Block  v.  Darl- 
ing, 140  U.  S.  234;  Smith  v.  Coleman, 
77  Wis.  343.  46  N.  W.  Rep.  664;  State 
v.  McDuffie,  107  X.  C.  8S5,  12  S.  E. 
Rep.  83;  Young  v.  Youngman  (Kan.), 
2^  Pac.  Rep.  209;  Wallace  v.  Williams, 
59  Hun. 628,  14X.Y.  Supp.  180;  Hick- 
am  v.  People  (111.).  27  X.  E.  Rep.  88; 
McFeters  v.  Pierson,  15  Col.  201,  24 
Pac.  Rep.  1076;  Edgell  v.  Francis,  S6 
Mich.  232,  48  X.  W.  Rep.  1095;  Nelson 
v.  Warren  (Ala.),  S  So.  Rep.  413;  Ev- 
erett v.  Williamson,  107  X.  C.  204.  12 
S.  E.  Rep.  [87. 


EXCEPTIONS.  7  17 

that  exceptions  must  be  specifically  directed   to  particular   in- 
structions.1 

§  792.  Noting  Exceptions  to  Instructions— Our  code  provides 
that  exceptions  to  instructions  may  be  noted  by  l4  writing  on 
the  margin  or  at  the  close  of  each  instruction  refused  and 
cepted  to,  or  given  and  excepted  to,  which  memorandum  shall 
be  signed  and  dated  by  the  judge."-  It  has  been  held  under 
this  provision  that  instructions  may  become  part  of  the  record. 
if  the  terms  prescribed  are  complied  with,  without  a  bill  of  ex- 
ceptions.3 In  order  that  the  instructions  may  become  a  part 
of  the  record  it  must  appear  that  they  were  filed.4  It  is  to  be 
observed  that  this  mode  of  bringing  instructions  into  the  record 
is  not  an  exclusive  one,  for  they  may  be  brought  into  the  record 
in  other  modes,  and  they  are  often  brought  in  by  a  bill  of  ex- 
ceptions.5 It  is  said  by  an  author  of  excellent  standing,  in 
speaking  of  one  of  the  early  cases"  that,  "  The  present  statute, 
as  we  have  seen,  conforms  to  the  case  first  cited,  and  an  excep- 
tion signed  by  the  party  or  his  attorney  would  not  now  be  avail- 
able." 7 

§  793.   Conclusions  of  Law  Stated  on  a  Special  Finding  of  Facts- 
It  is  now  quite  well  settled  that  the  proper  mode  of  questioning 

1  Carroll  v.  Williston,  44  Minn.  2S7,  Ind.  100."     See,  also,  Silver  v.  Parr,  115 

46  N.  W.  Rep.  352;  Stitt  v.  State,  91  Ind.   113.     The   date    must   be    stated. 

Ala.  10,    8    So.  Rep.   669;    Walker  v.  Behymer  v.  State,  95  Ind.  140;    Child- 

State,Q,i  Ala.  32,76,980.  Rep.  87;  Read  ress  v.  Callender,  supra,  p.   396. 

v.  Nichols,  ti8  N.  Y.  22  |,  S.  C.  7  Law.  Craig  v.  Frazier,  127  Ind.  286. 

Rep.  Anno.  130;  State  v.  Adamson,  43  *  See  the  cases  cited  in  the  preceding 

Minn.    [96,    4.5    N.    W.    Rep.    152.     See  note,  and,  also.  Blount  v.  Rick,  107  Ind. 

McCarl  v.  Squire,  [50  Mass.  4S4,  23  N.  23S;    Landwerlen   v.  Wheeler.  100  [nd. 

E.  Rep.  ^23.  523;    Olds   v.   Deckman,  98   Ind.    162; 

*  R.  S.  1SS1,  §  535.  Supreme    Lodge,    etc.,    V.   Johnson.    7^ 

3  In  Lower    v.  Franks,   115  Ind.  334,  Ind.  no;   Elliott  p.  Russell, 92  Ind 

338,  the  court  said:     " These  memoran-  O'Donald    v.   Constant,    82    Ind.    212; 

dums,    signatures     and     indorsements  Marquadt  v.  Sieberling,   121    Ind    $07; 

brought   the  instructions  into  the  rec-  Eslinger  *    East,  too  [nd.  434;     Louis- 

ord,    under  the    provisions    of    section  ville,  etc.,  v.  Wright,  115   Ind.  $78 

535,  R.  S.  1881,  without  a  formal  bill  of  *  Newbj     v.    Warren,    :\    Ind.    161; 

exceptions  and    without   any   order  of  Burk  :  .  Andi6,  os  Ind 

the   court  making   them  a    part   of  it.  'Cross  v.  Pearson,  17  Ind.  612 

Childress    v.  Callender,   mS  Ind.  304:  '  1  Work's  Practice.     - 
Fort   Wax  tic,  etc.,  Co.  :     Beyerle,  tio 


748 


ERROR   IN    JUDICIAL  PROCEEDINGS. 


the  correctness  of  the  conclusions  of  law  stated  by  the  court 
upon  a  special  finding  of  facts  is  by  excepting,  at  the  time,1  to 
each  of  the  conclusions.  The  validity  of  the  conclusions  is  not 
reached  by  a  motion  for  judgment  nor  by  a  motion  for  a  new 
trial,1'  but  the  correctness  of  the  decisions  upon  questions  of 
facts  must  be  challenged,  as  elsewhere  shown,  by  a  motion  for 
a  new  trial.  The  exceptions  should  be  addressed  to  the  conclu- 
sions of  law3  and  not  to  the  findings  of  facts,  for  exceptions  to 
the  findings  of  facts  are  ineffective.4  A  motion  for  a  new  trial 
calls  in  question,  if  properly  framed,  the  correctness  of  the  find- 
ings of  facts,  but  it  does  not  challenge  the  correctness  of  the  con- 
clusion stated  on  the  facts.5  An  exception  to  the  conclusions  of 
law  concedes,  for  the  purposes  of  the  exception,  that  the  facts  are 
correctly  found,6  but  an  exception  does  not  cut  off  a  motion  for 
new  trial.7  The  exception  properly  precedes  the  motion  and 
concedes  for  the  purpose  of  securing  a  decision  upon  the  facts 
stated  in  the  finding  that  the  facts  are  found  as  the  evidence  re- 
quires, but  after  the  exception  is  entered  a  motion  for  a  new  trial 


1  Time  is  an  essential  consideration. 
Hull  v. Louth,  109  Ind. 315.  In  the  case 
cited  it  was  said:  "It  is  settled  by  the 
decisions  of  this  court,  that  in  order  to 
save  any  question  for  review  here,  in  a 
case  like  this,  an  exception  to  the  con- 
clusions of  law  must  be  taken  at  the 
time  the  decision  is  made."  The  court 
cited  Smith  v.  McKean,  99  Ind.  101; 
Kolle  v.  Foltz,  74  Ind.  54;  Johnson  v. 
Bell,  10  Ind.  363;  Dickson  v.  Rose,  87 
Ind.  103;  Cincinnati,  etc.,  Co.  v.  Lev- 
iston,  97  Ind.  488. 

2  Grimes  v.  Duzan,  32  Ind.  361;  Ohio, 
etc.,  Co.  v.  Hays,  35  Ind.  173;  Lynch 
v.  Jennings,  43  [nd.276;  Montmorency, 
etc.,  Co.  v.  Rock,  41  Ind.  263;  Schmitz 
7'.  Lauferty,  29  Ind.  400;  Martin  :■. 
Cauble,  72  Ind.  67;  Peden  v.  King,  30 
Ind.  181;  Board  v.  Newman.  35  Ind. 
10;  Cruzan  v.  Smith,  41  Ind.  288;  Rose 
:•.  Duncan,  43  Ind.  512;  Rathburn  V. 
Wheel  r,  m  [nd.  601;  Smith  v.  David- 
son, 45  Ind.  396;   Luirance  v.  Luirai 


32  Ind.  19S;  City  of  Logansport  v. 
Wright,  25  Ind.  512. 

3  The  correctness  of  a  conclusion  of 
law  is  tested  by  an  exception  and  a  mo- 
tion for  a  new  trial  is  not  necessary  to 
present  questions  upon  the  conclusions. 
Rathburn  v.  Wheeler,  29  Ind.  601. 

*  Gardner  v.  Case,  m  Ind.  494,  cit- 
ing E\  parte  Walls,  73  Ind.  95;  West- 
ern Union  Tel.  Co.  v.  Brown,  10S  Ind. 
538;  Dodge  v.  Pope,  93  Ind.  480. 

5  Bundy  v.  McClarnon,  118  Ind.  165; 
Clayton  v.  Blough,  93  Ind.  85. 

6  Fairbanks  v.  Meyers,  98  Ind.  92; 
Wvnn  v.  Troy.  109  Ind.  250;  Bass  v. 
Elliott,  105  Ind.  517;  Helms  v.  Wag- 
ner, 102  Ind.  385;  Hartman  v.  Aveline, 
63  Ind.  344;  Gregory  V.  Van  Voorst, 
Sq  Ind.  10S;  Kurtz  v.  Carr,  105  Ind. 
574;  Warren  v.  Sohn,  112  Ind.  213: 
Schindler  v.  Westover,  99  Ind.  395. 

7  Robinson  v.  Snyder, *74  Ind.  no; 
Dodge  7'.  Pope,  93  Ind.  480;  Bertelson 
V.  Dower,  Si  Ind.  512. 


EXCEPTIONS,  749 

may  be  made.1  Exceptions  to  conclusions  of  law  should  be  taken 
bv  the  party  before  he  takes  any  other  steps  in  the  case,  for  if  he 
takes  other  steps  his  exception  will,  as  a  general  rule,  be  inef- 
fective,2 but  he  will  not  lose  the  benelil  of  his  exception  if  h< 
otherwise  entitled  to  hold  it  because  of  steps  taken  by  the  ad- 
verse party  before  his  exception  is  taken.3  The  exception  is 
shown  to  be  timely  if  it  appears  in  the  same  entry  as  that  in 
which  the  special  finding  is  contained.4 

§  794.   Specifying  Error  on  Exceptions  to  Oonelnsions  of  Law — 

Where  an  exception  to  a  conclusion  of  law  is  well  reserved  in 
the  trial  court  it  is  sufficient  on  appeal  to  specif}'  as  error  that 
the  trial  court  erred  in  its  conclusions  of  law.  Such  a  specifi- 
cation does  not,  however,  present  any  question  that  requires 
for  its  presentation  to  the  trial  court  a  motion  for  a  new  trial. 
Where  a  ruling  on  a  motion  for  a  new  trial  is  the  one  which 
presents  the  questions  that  ruling  must  be  specified  as  error. 

§  795.  Ruling  on  a  Motion  for  New  Trial — An  exception  to  a 
ruling  upon  a  motion  for  a  new  trial  is  as  essential  as  to  any 
other  ruling.5  A  general  exception  is  all  that  is  required.  The 
exception  taken  to  the  ruling  on  the  motion  brings  up  for  re- 
view all  the  questions  properly  saved  and  reserved  during  the 
trial,  provided  the  motion  appropriately  specifies  the  rulings 
of  which  complaint  is  made.  An  exception  to  a  ruling  upon  a 
motion  for  new  trial  does  not,  however,  take  the  place  of  excep- 
tions to  rulings  made  relative  to  matters  of  trial  procedure  or 
to  rulings  on  the  trial,  as  each  ruling  as  it  is  made  must  be  ex- 
cepted to  at  the  time.6     At  common  law,  no  exception  would 

1  Ante,  §§757,760.    Long  v.  Williams,  lev  v.  McNoun,  76  Ind. 380;  Mansurv. 

74  Ind.  1 15;  Hess  v.  Hess,  1  iglnd. 66,68.  Churchman,  84  Ind.  573. 

As  to  effect  of  granting  motion  for  new  6  The  exception   to   the  ruling  on   a 

trial,  State  V.  Templin,   12:   Ind.  235.  motion  for  a  new  trial    saves    questions 

1  Dickson  V.Rose, 87  Ind.  103;  Smith  upon   the    immediate   ruling   and   upon 

v.  McKean,  99  Ind.  101.  such  rulings  as  were  made  during  the 

3  Helms  V.  Wagner,  102  Ind.  385.  trial    and   appropriately  excepted   to   at 

*  Western  Union  Tel.  Co.  t'.  Trissal,  the   time,  and   where    leave  is    obtained 

08  Ind.  ^66.     See  Clark  v.  Deutsch,  101  during  the  term   to  reduce  the  excep- 

Ind.  491;  Bodkin  v.  Merit.  102  Ind.  293.  turns  t.>  writing,  all  such  rulings  maybe 

5  Irwin  v.  Anthony, 8 Ind. 470;   Hen-  exhibited    in    one   bill   of    exceptions 


■.",() 


ERROR   IN   JUDICIAL   PROCEEDINGS. 


lie  to  a  ruling  upon  a  motion  for  ;i  new  trial,  as  the  granting  or 
isal  of  such  a  motion  was  considered  a  matter  of  discretion.1 
But,  under  our  code,  and  under  the  codes  of  many  of  the  States, 
an  exception  may  be  taken.  An  exception  to  a  ruling  upon  a 
motion  for  new  trial  presents  questions  in  some  instances  not 
presented  by  exceptions  taken  before  or  during  the  trial,  as  for 
instance,  that  upon  newly  discovered  evidence  or  that  upon  the 
sufliciency  of  the  evidence  to  sustain  the  finding  or  verdict. 
But,  as  will  be  shown  in  a  subsequent  chapter,  a  motion  for  a 
new  trial  is  necessary  in  many  cases  to  preserve  and  make 
available  exceptions  taken  before  or  during  the  trial,  inasmuch 
as  it  is  the  vehicle  which  conveys  to  the  court  an  opportunity  to 
review  its  rulings.  As  an  exception  must  be  taken  to  each 
ruling,  it  results  that  an  appeal  does  not  operate  as  an  excep- 
tion, and  so  it  has  been  held.2 

§  796.  Questioning  Judgments — It  is  true  in  a  general  sense 
that  all  exceptions  properly  taken  do  question  the  validity  of  a 
judgment,  inasmuch  as  the  ulterior  purpose  of  entering  an  ex- 
ception is  to  make  it  available  as  one  of  the  steps  essential  to 


Pitzer  v.  Indianapolis,  etc.,  Co.,  So  Ind. 
569;  Harrison  v.  Price,  22  Ind.  165.  It 
is  essential  that  leave  should  be  ob- 
tained during  the  term  at  which  the 
ruling  on  the  motion  is  made.  Ryman 
-'.  Crawford,  So  Ind.  262,  266;  Dickson 
v.  Lambert,  98  Ind.  4S7,  494;  R.  S.  1881, 
§626;    Vogel  V.  Harris.  112   Ind.  494. 

1  Missouri,  etc.,  Co.  v.  Chicago,  etc., 
Co.,  132  U.  S.  191;  Ilallock  v.  Port 
land,  S  Ore.  29;  Kearney  v.  Snodgrass, 
12  Ore.  311;  Bird  v.  Dansdale,  2  Binn, 
So.  90;  Whitehurst  v.  IYttipher,  105  N. 
C.  40;  United  States  v.  Jarvis,  3  Wood 
&  M.  225;  McLanahan  v.  Universal 
[ns.  Co.,  1  Pet.  169,  183;  Miller  v.  Baker, 
20  Pick.  217.  285;  Johnson  v.  Macon,  1 
W  ish.(Va.),  4;  Rex  v.  Mawbey ,  6  Term 
Rep.  619,  638;  Smith  v.  Frampton,  2 
Salk.  644,  n;  Calcraft  v.  Gibbs,  5  Term 
Rep.  19,  20.  This  rule  prevails  in  some 
of  the  code  States.  St.  John  v.  West, 
4    How.    Pr.  329:    State   V.   Fitzhugh,  2 


Ore.  227,  236;  Onondaga,  etc.,   Co.   v. 
Minard,  2  N.  Y.  9S. 

2  Timmons  v.  McOnnoughhay,  S  Ind. 
483,  citing  Young  v.  McLane,  8  Ind. 
357  and  Zehnor  v.  Beard,  S  Ind.  96.  It 
seems  to  us  that  the  ruling  that  the 
taking  of  an  appeal  does  not  operate  as 
an  exception  is  right,  for  several  rea- 
sons; one  is,  that  it  can  not  be  ascer- 
tained what  particular  ruling  is  objected 
to.  Another  is  that  an  appeal  brings 
up  an  entire  case  and  specific  rulings 
can  not  be  made  available  in  that  mode, 
and  still  another  is  that  a  proposal  or 
offer  to  appeal  would  not  be  available 
as  an  exception  in  a  suit  for  the  review 
of  a  judgment  or  decree.  It  may 
be  observed  of  the  reason  last  stated 
that,  as  elsewhere  shown,  the  de- 
cisions place  appeals  and  proceedings 
to  review  upon  substantially  the  same 
footing,  so  far  as  exceptions  are  con- 
cerned. 


EPTIONS.  761 

secure  the  reversal  of  the  judgment  in  the  particular  case.  But 
such  exceptions,  while  operating  upon  the  judgment,  do  not  do 
so  in  such  a  sense  as  to  enable  a  party  to  secure  the  modifica- 
tion or  amendment  of  the  judgment  or  decree.  Where  objec- 
tions are  interposed  and  exceptions  duly  taken  they  will  avail. 
if  effective,  for  the  reversal  of  the  judgment,  but  exceptions 
taken  to  rulings  during  the  trial  do  not  reach  a  defect  or 
error  in  the  form  or  substance  of  the  judgment  itself.  It 
has,  indeed,  been  held  that  no  exception  to  a  judgment  is 
proper.1  This  is  undoubtedly  true  where  the  term  "  exception  " 
is  used  in  the  sense  ordinarily  assigned  to  it  in  code  procedure, 
but  the  term  is  sometimes  employed  in  a  different  sense.  It  is 
sometimes  used  as  designating  an  objection  to  a  judgment  or 
decree,  and  when  so  used  it  expresses  quite  a  different  meaning 
from  what  it  does  when  employed,  as  it  ordinarily  is,  to  denote 
the  purpose  of  a  party  to  subsequently  make  the  ruling  avail- 
able as  error.  The  proper  mode,  as  we  believe,  of  questioning 
a  judgment  is  by  moving  to  modify  or  amend  and  reserving  an 
exception  to  the  ruling  on  the  motion.  This  is  the  established 
doctrine  in  this  jurisdiction,2  but  a  different  rule  is  sanctioned 
by  the  decisions  of  other  courts.3     General   objections   are,  as 

1  State  v.    Swarts,  9  Ind.  221.     The  502;   Adams  7-.   La   Rose.  75   Ind.471; 

cardinal  principle  of  appellate  proced-  YVilkerson  v.  Rust,  57  Ind.  172;   Baker 

ure  that  there  should  be  a  ruling  upon  v.  Horsey,  21  Ind.  246;    O'Brien  v.  Pe- 

a  question  well  presented  to  the  court  of  terman,  34  Ind.  556;    Rardin  f.Walpole, 

original  jurisdiction,  and  an  exception  38  Ind.  146;  Quill  v.  Gallivan,  108  Ind. 

to  that  ruling,  supports  the  general  doc-  235. 

trine    of  the    case    cited.      Where    the         s  Vreton  v.  Beltezore.   17   Neb.  399; 

trial  court  simply  formulates  and  enters  Black  v.  Winterstein,  6  Neb    225:   La 

a  judgment,  an   exception  to  the  judg-  Fayette  Bank   v.  Buckingham,  12  Ohio 

ment  in  general  terms  presents  no  pre-  St.  419;    Morrow   v.  Sullender,  4  Neb. 

cise  question  demanding  a  decision  and  374;  Parratt  v.  Neligh.7  Neb. 456;  Jones 

is   not  sufficient,  for  in  order  to  secure  v.  Null,  >)  Neb.  253.      We  are  unable  to 

the  decision  of  a  question  it   is  neces-  escape  the  conclusion  that  the  doctrine 

sary  that  there  should  be   a  motion  or  of  the   cases  in   this  note  is  in  conflict 

objection  containing  appropriate  speci-  with  the  general  principle  that  only  ob- 

fications.  jections  presented  to  the  trial  court  can 

1  Ante,  9  345.  State  ;  .  Wood  (Sup.  be  considered  on  appeal.  It  seems  to 
Ct.  of  Ind.).  30  N.  E.  Rep. — ;  Mans-  us,  also,  that  it  is  in  conflict  with  the 
field  v.Shipp,  12S  Ind.  55,58;  Kissel  v.  fundamental  principle  of  appellate  pro- 
Anderson,  73  Ind.  1.85;  People's  Sav-  cedure  that  the  court  of  original  juris 
ings  Association  v.  Spears.  1 15  Ind.  2(17;  diction  should  be  given  an  opportunity 
Berkev,  etc.,    Co.    V.  Hascall,    123    Ind.  to  obviate  or  rectify  its  own  errors.     It 


52 


ERROR   IN  JUDICIAL  PROCEEDINGS. 


we  think,  insufficient.1  A  trial  court  is  entitled  to  be  in- 
formed of  the  precise  questions  it  is  required  to  decide,  and  the 
appellate  tribunal  will  only  consider  those  questions.  It  will, 
indeed,  consider  the  questions  upon  the  objections  presented  to 
the  trial  court  and  no  others.2  Exceptions  duly  reserved  upon 
objections  made  during  the  progress  of  the  cause  are,  of  course, 
saved,  if  other  proper  steps  are  taken,  without  an  exception  to 
the  judgment. 


mav  be  further  said  that  the  doctrine  of 
the  cases  cited  is  in  conflict  with  the 
rule  upon  the  subject  of  presumptions. 
1  In  Atkisson  v.  Martin,  39  Ind. 
242,  it  was  said:  "Conceding  that  the 
exception  to  the  judgment  might  well 
be  taken  without  a  bill  of  exceptions, 
still  there  must  have  been  some  point- 
ing out  of  the  objection  to  the  judg- 
ment as  rendered."  In  Walter  v.  Wal- 
ter, 117  Ind.  247,  250,  a  general  objec- 
tion to  a  judgment  was  held  insufficient, 
the  court  saying:  "There  is  an  objec- 
tion to  the  form  of  the  judgment  and  an 
exception,  but  the  objection  is  a  gen- 
eral one.  It  does  not  point  out  wherein 
the  judgment  was  improper."  In  Sanxay 
v.  Hunger,  42  Ind.  44,  and  in  Hormann 
v.  Hatmetz,  128  Ind.  353,  358,  the  doc- 
trine stated  in  the  text  is  explicitly  af- 
firmed. It  was  adjudged  in  Adams  v. 
La  Rose,  75  Ind.  471,  475,  that  a  bill  of 
exceptions  is  necessary  to  present  the 
question.  It  was  there  said:  "There 
is  no  bill  of  exceptions  in  the  record, 
showing  any  exceptions  to  the  form  or 
substance  of  the  decree,  or  the  grounds 
of  objection  or  exception  if  any  were 
ever   made.     The  recitals  of  the  clerk 


following  of  the  decree  that  objection 
was  made  and  exception  taken  to  the 
ruling  thereon  are  not  evidences  of  the 
fact.  Bayless  v.  Glenn,  72  Ind.  5; 
Douglass  v.  State,  72  Ind.  385;  Teal  v. 
Spangler,  72  Ind.  380." 

2  The  doctrine  is  thus  stated  in  Smith 
v.  Huntley,  48  Mich.  352:  "The  ex- 
ception relied  upon  is  a  general  excep- 
tion to  the  judgment.  It  is  now  claimed 
that  error  appears  by  a  comparison  of 
the  judgment  with  the  declaration  and 
bill  of  particulars;  in  this  way,  that  by 
comparison,  the  judgment  is  shown  to 
be  more  than  could  have  been  regularly 
given  under  the  bill  of  particulars.  But 
nothing  appears  by  the  record  to  show 
that  the  attention  of  the  court  was  ever 
called  to  such  question,  or  that  he  ever 
saw  the  bill  of  particulars.  We  review 
only  the  rulings  of  the  circuit  judge, 
and  to  enable  the  party  to  raise  the 
question,  he  should  either  have  ob- 
tained special  findings  which  he  could 
then  claim  do  not  support  the  judg- 
ment, or  he  should  have  had  a  ruling 
upon  the  point  and  taken  his  exception 
to  the  ruling." 


CHAPTER  XIII. 


BILLS   OF   EXCEPTIONS. 


4  797.    Object  of  a  bill  of  exceptions. 
79S.   The  duty  of  settling  a  bill  of  ex- 
ceptions is  judicial. 

799.  By    whom   the   bill    should    be 

signed. 

800.  Time  within  which  the  bill  may 

be  signed. 

801.  How  the  order  extending  time 

must  be  shown. 

802.  Presenting  the  bill  to  the  judge. 

803.  Time  can  not  be  extended  after 

the  close  of  the  term. 

804.  Bills  filed  in  term. 

805.  Filing  after  term. 

806.  Form  of  the  bill. 

807.  Requisites  of  the  bill — General 

doctrine. 

508.  Stating  the  exceptions. 

509.  Facts  on  which  exceptions  are 

based  must  be  stated. 

810.  Duty  of  the  trial  judge. 

811.  Effect  of  the  statements  and  re- 

citals of  the  bill. 

812.  Making  error  apparent. 

813.  Rulings  made  in  the  formation 

of  issues. 


§  S14 

816 

S17 


81S. 


819. 


S20. 


Collateral  motions. 

Recitals  in  direct  motions. 

Rejected  pleadings. 

Instruments  that  may  be  brought 
into  the  record  by  a  bill  of  ex- 
ceptions. 

Making  written  instruments 
part  of  the  bill  by  reference — 
General  rule. 

Instruments  once  properly  in 
the  record  need  not  be  copied 
in  the  bill. 

Oral  evidence. 
821.   Stenographer's  report  of  the  evi- 
dence. 
8j2.    Making    stenographer's    report 
part  of  the  bill. 

The  rule  whore  all  the  evidence 
must  be  in  the  record. 

The  general  recital  not  always 
controlling. 
S25.    Amendment  of  bills  of  excep- 
tions. 
826.    Application    for   the   order    to 
amend. 


S23. 


82 


§  797.  Object  of  a  Bill  of  Exceptions — A  bill  of  exceptions  is 
necessary  to  bring  into  the  record  matters  which  are  not  parts 
of  the  record  proper.1     There  is  no  necessity  for  a  bill  of  exeep- 


1  In  Young  v.  Martin,  S  Wall.  354, 
357,  it  was  said:  "It  is  true,  as  stated 
by  counsel,  that  the  object  of  a  bill  of 
exceptions  is  to  make  matter  of  record 
what  would  not  otherwise  appear  .is 
such,  and  that  no  bill  is  necessary 
where  the  error  alleged  is  apparent 
upon   the  record."      In   Gavin  :'.  State. 


56  Ind.  51,  the  following  definition  of  a 
bill  of  exceptions  was  adopted:  "  A 
formal  statement  in  writing,  of  excep- 
tions taken  to  the  opinion,  decision  or 
direction  of  a  judge  delivered  during 
the  trial  of  a  cause,  setting  forth  the 
proceedings  on  the  trial,  the  opinion  or 
decision  given,  and  the  exception  taken 


48 


(753) 


754  ERROR   IN  JUDICIAL  PROCEEDINGS. 

tions  where  the  record  proper  exhibits  the  exceptions  in  due 
form,  the  grounds  upon  which  the  ruling  or  decision  proceeds, 
and  the  decision.  The  object  of  the  bill  is  to  present  for  review 
questions  not  presented  by  the  record  proper,  so  that  the  ques- 
tion whether  a  bill  of  exceptions  is  required  is  to  be  determined 
by  ascertaining  whether  the  matters  involved  are  fully  pre- 
sented by  the  intrinsic  record,  that  is,  by  the  record  composed 
of  the  elements  made  necessary  by  law  to  the  record  proper.1 

§  798.   The  Duty  of  Settling  a  Bill  of  Exceptions  is  Jndicial— We 

have  incidentally  shown  that  the  duty  of  framing  and  settling 
a  bill  of  exceptions  is  judicial,2  but  the  important  influence  ex- 
erted by  this  doctrine  makes  it  necessary  to  consider  the  sub- 
ject somewhat  more  carefully.  We  do  not  mean  to  be  under- 
stood as  declaring  that  the  judge  who  grants  the  bill  must  pre- 
pare it ;  we  mean  simply  that  he  must  settle  it  and  cause  it  to 
express  the  truth.  It  must  embody  the  facts  as,  in  his  judg- 
ment, they  exist ;  he  can  not  delegate  his  authority  nor  can  he 
substitute  the  judgment  of  any  other  person  for  his  own.3  It  is 
the  duty  of  counsel  to  prepare  and  tender  the  bill,  but  it  is  the 

thereto,  and  sealed  by  the  judge  in  testi-  202.  The  subject  will  be  necessarily 
mony  of  its  correctness."  See  Doctor  considered  from  a  point  of  view  differ- 
v.  Hartman,  74  Ind.  221,  230;  Suydam  ent  from  that  occupied  in  the  antecedent 
v.  Williamson,  20  How.  (U.  S.)  427;  paragraphs  designated  in  the  para- 
Williams  v.  Norris,  12  Wheat.  117;  graphs  which  follow. 
Leveringet'.  Dayton,  4Wash.CC.  698;  2  Seymour,    etc.,  Co.  V.    Brodhecker 

Danks  v.  Rodeheaver,  26  W.  \a.  274;     (Ind.  Sup.  Ct.),  30  N.  E.  Rep. ;  Mc- 

Hamlin  v.  Reynolds,  22  111.  207;  Swag-  Coy  v.  Walls  (Ind.  Sup.  Ct.),  30  N.  E. 

gard   v.    Hancock,   25    Mo.    App.   596;     Rep.  .     In  Emmerson  v.    Clark,   2 

State  v.  Anderson,  42  La.  Ann.  474,  7  Scam. 489,  it  was  said:  "It  was  the  duty 

So.   Rep.  687;     Wampler   v.  State,    28  of  the  court  to  sign  the  bill  of  exceptions 

Tex.    App.   352,    13   S.   W.   Rep.    144;  if  it  was  correct.     If  it  does  not  truly 

Davis  v.  State,  75  Texas,  420,  12  S.  W.  state  the  case  the  judge  should  refuse  to 

Rep.  957;   Herbison  v.  Taylor,  29  Neb.  sign  it.     It  was  not  in  the  power  of  the 

217.  45  X.W.  Rep.626;  Cole  v.  Driskell,  court  to  delegate  its  authority.     It  is  a 

[Blackf.  16;   State  f.Carr,  37  Kan.  421,  judicial    act.      It    then    stands    in    this 

15  Pac.  Rep.  603;   Hall  v.  Durham,  109  court  as  if  no  exception  had  been  taken 

Ind.  434,  9  N.  E.  Rep.  926;  York,  etc.,  to  the  instructions  of  the  court  below." 

Co.  v.  Myers,  18  How.  (U.  S.)  243,  251.  Byrne  v.  Clark,  31  111.  App.  651. 

1  We   have    elsewhere   shown    what  3  Toledo,  etc.,  Co.  v.  Rogers,  48  Ind. 

matters  are   regarded   as   parts  of  the  427;  Poteet  v.  County  of  Cabell,  30  W. 

record  proper.     Ante,  §§  190,  191,  196,  Va.  5S,  3  S.  E.  Rep.  97. 


BILLS  OF   EXCEP1  lo.NS.  755 

duty  of  the  judge  to  correct  or  revise  it,  so  that  it  will  express 
his  own  judgment  and  understanding  of  the  facts.  It  is  imma- 
terial by  whom  the  clerical  work  of  preparing  the  bill  is  done, 
whether  by  a  stenographer  or  any  one  else,  provided  the  judge 
judicially  determines  that  it  is  correct  and  evidences  his  decis- 
ion by  signing  the  bill.1  The  rule  that  the  duty  of  settling  and 
signing  bills  of  exceptions  is  judicial  requires  that  all  matters 
required  to  be  exhibited  by  a  bill  should  be  placed  there  by  the 
judge  and  not  by  a  ministerial  officer,  although  the  clerical  work 
may  be  done  by  counsel,  stenographers,  or  other  persons.  It 
seems  to  follow  from  the  rule  stated  that  a  bill  must  be  complete 
when  it  receives  the  signature  of  the  judge.2  Parties  can  not  by 
stipulation  make  a  complete  and  effective  bill  of  exceptions.3 
As  the  duty  of  settling  the  bill  is  judicial  the  judge  who  tries 
the  case  can  not  be  compelled  by  mandamus,  as  we  have  else- 
where shown,  to  embody  in  it  matters,  which,  in  his  judgment,  do 
not  properly  belong  in  it.1  The  duty  of  the  judge,  if  it  is  judicial, 
as  we  assume  it  is,  can  not  be  devolved  upon  a  ministerial 
officer,  so  that  what  shall  constitute  a  bill  of  exceptions  can 
not  be  determined  by  a  clerk,  stenographer,  or  any  person 
other  than  the  judge.  It  would  seem  to  result  that  a  stenogra- 
pher's report  of  the  evidence  can  not,  on  principle,  be  part  of 
a  bill  of  exceptions  unless  made  so  by  the  judge's  act,  and  it  is 

1  Dick  r.  Mullins,  128  Ind.  365;  Hill  of  the  bill  by  reference.  This  does  not, 
v.  Hagaman,  S4  Ind.  2S7;  Bradway  v.  however,  oppose  the  doctrine  of  the 
Waddell,  95  Ind.  170;  Stagg  v.  Comp-  text  that  settling  the  bill  is  a  judicial 
ton,  81  Ind.  171;  Williams  V.  Pendle-  duty,  for  the  identification  of  the  writ- 
ton,  etc.,  Co.,  76  Ind.  S7.  ings  and  the  noting  of  a  proper  place 

1  The  early   decisions   of  this  court  for  their  insertion  is  still   the  exercise 

enforced  this  doctrine  with  strictness,  of  judicial  power. 

for  they  held  that  the  bill  ought  not  to  "Clark    v.    McCrary,   So    Ala.    no; 

be  signed  until  it  was  complete,  although  Herman  :•.  Jeffries.  4  Mont.  513;  State 

documentary    evidence    was    the    only  f.Weiskittle,  61   Md.  48;   Spencer 

part    omitted.     Board   of  Trustees    of  Louis,  etc.,  Co.,  79  Mo.  500;  Coburn  v. 

Vincennes    University    v.   Embree,   7  Murray,  2  Me.  336;   Hodgden  v.  Com- 

Blackf.  461;    Huflf  v.  Gilbert,  4  Blackf.  missioners,    10   Kan.  637;     Leonard  v. 

19;  Spears  v.  Clark,  6  Blackf.  [67;  Doe  Warriner,  20  Wis.  41;   Wessels  : 

v.  Makepeace,  S  Blackf.  575;     Mills  V.  man.  66  Mich.  343,  33  X.  W.  Rep.  510; 

Simmonds,  10  Ind.  464;  Irwin  v.  Smith,  Howard  v.  Ross  (Wash.),  28  Lac.  Rep. 

72  Ind.  482,  4S9.      But,  as  we  shall  here-  526. 

after  show,   the   statute   provides  that  *  Ante,  p.  51                and  authorities 

written  instruments  may  be   made  part  cited  in  the  note. 


'•Jlj 


ERROR   IN  JUDICIAL   PROCEEDINGS. 


quite  certain  that  statements  or  recitals  of  the  clerk  can  not  De 
deemed  parts  of  the  bill.1 

§  799.  By  Whom  the  Bill  should  be  Signed— Where  the  judge 
who  tried  the  case  is  still  the  incumbent  of  the  office  there  can 
be  no  doubt  upon  the  question  as  to  who  should  sign  the  bill, 
for  the  authorities  are  well  agreed  that  it  must  be  signed  by  the 
judge  who  tried  the  case.2  This  rule  applies  to  a  special  judge, 
for  he  has  authority  to  sign  a  bill  of  exceptions  tendered  within 
the  time  granted  by  him.3  Our  decisions  declare  that  where  a 
judge  dies,  or  goes  out  of  office  by  resignation,  or  because  of 
the  expiration  of  his  term,  he  can  not  sign  the  bill  of  excep- 
tions, but  that  it  must  be  signed  by  his  successor.4  It  seems 
difficult  to  sustain  the  doctrine  of  our  cases,5  for  it  is  not  easy 


1  It  is  obvious  from  what  is  said  in 
the  text  that  the  report  of  a  stenogra- 
pher can  not  be  made  part  of  a  bill  of 
exceptions  otherwise  than  by  the  judge. 
It  is  very  doubtful  whether  the  legisla- 
ture can  even  by  express  enactment 
make  a  stenographer's  notes,  or  the 
notes  of  any  one  else,  part  of  the  bill, 
inasmuch  as  nothing  can  become  part 
of  it  except  by  judicial  action  and  only 
a  judge  can  take  such  action.  It  is,  at 
all  events,  quite  clear  that  where  there 
is  doubt,  the  stenographer's  notes  can 
not  be  considered  as  part  of  a  bill. 

1  Law  v.  Jackson,  8  Cow.  746;  Hal- 
stead  v.  Brown,  17  Ind.  202;  Travelers 
Insurance  Co.  v.  Leeds,  38  Ind.  444; 
Sire  v.  Ellithorpe,  etc.,  Co.,  137  U.  S. 
579;  Chicago,  etc.,  Cc.  v.  Johnson,  34 
111.  App.  351;  Perkins  v,  Bakrow,  39 
Mo.  App.  331;  Connelley  v.  Leslie,  28 
Mo.  App.  551;  Hancock  v.  Town  of 
Worcester  (Vt.).  18  Atl.  Rep.  1041; 
Labold  v.  Wilson,  4  Ohio  Cir.  Ct.  345; 
/  [•arte  Bradstreet,  4  Peters,  102; 
Stanaford  v.  Parker(Ky.).  15  S.W.  Rep. 
7S4;  Fielden  v.  People,  12S  111.  595,  21 
N.  E.  Rep.  584.  See,  generally,  State 
:.  Harris,  39  La.  Ann.  22S;  Wessele  v. 
Bi  email,  66  Mich.  343. 


3  Shugart  7*.  Miles,  125  Ind.  445,  446, 
citing  Perkins  v.  Hayward,  124  Ind. 
445;  Staser  v.  Hogan,  120  Ind.  207,  208; 
Beitman  v.  Hopkins,  109  Ind.  177; 
Wilson  -'.  Piper,  77  Ind.  437,  440. 

4  Smith  v.  Baugh,  32  Ind.  163;  Hed- 
rick  v.  Hedrick,  28  Ind.  291;  McKeen 
V.  Boord,  60  Ind.  2S0;  Reed  v.  Wor- 
land,  64  Ind.  216;  Lerch  v.  Emmett,  44 
Ind.  331;  State  v.  Murdock,  86  Ind. 
124;  Bowlus  v.  Brier,  87  Ind.  391;  To- 
ledo, etc.,  R.  Co.  v.  Rogers,  48  Ind.  427. 

5  In  Ketcham  v.  Hill,  42  Ind.  64,  70, 
the  case  of  New  York,  etc.,  Co.  v.  Wil- 
son, 8  Pet.  291,  is  cited  as  sustaining 
the  doctrine,  but  that  case  certainly 
gives  it  no  support.  All  that  is  ad- 
judged in  New  York,  etc.,  Co.  v .  Wil- 
son, is  that  the  successor  of  a  judge 
who  had  died  might  be  compelled  by 
mandamus  to  sign  a  judgment.  Bu1 
the  question  in  a  case  such  as  that  is 
radically  different  from  the  question  of 
who  shall  sign  a  bill  of  exceptions. 
The  determination  of  what  a  bill  of 
exceptions  shall  contain  is  a  judicial 
act,  in  the  strictest  sense  of  the  term. 
A  judge  can  not  be  compelled  to  put 
into  a  bill  matters  which  he  decides  do 
not   belong   there.     Ante,  §  516,  p.  43S. 


BILLS  01     EXCEPTIONS. 


757 


to  conceive  how  an  instrument  importing  absolute  verity  can  be 
executed  by  one  who  has  no  knowledge  whatever  of  the  mat- 
ters it  assumes  to  state.  Nor  is  it  easy  to  conceive  how  such  a 
doctrine  can  be  harmonized  with  the  fundamental  principle 
that  the  statements  of  the  judge  upon  disputed  questions  of  fact 
concerning  matters  occurring  in  court  are  conclusive.  It  is 
difficult  for  us  to  escape  the  conclusion  that  the  courts  are  right 
which  hold  that  the  successor  of  the  judge  who  tried  the  case- 
can  not  sign  a  bill  of  exceptions  where  there  is  a  disputed  ques- 
tion of  fact,  that  is,  a  dispute  as  to  what  the  bill  should  contain, 
and  that  the  proper  course  where  there  is  no  judge  who  can 
sign  is  to  award  a  new  trial.1 

§  800.  Time  within  which  the  Bill  may  be  Signed— At  common 
law  a  bill  of  exceptions  must  be  completed,  signed  and  filed 
during  the  term.1'  In  this  State  and  in  some  other  States  the 
time  may  be  extended  by  an  order  of  court.  But  the  order  can 
not  be  made  after  the  close  of  the  term. 

§  801.  How  the  Order  Extending  Time  must  be  Shown— The  rec- 
ord must  show  the  order'giving  time  beyond  the  term  in  which 
to  complete  the  bill  of  exceptions.  The  order  must  appear  by 
an  entry  of  record.  A  recital  in  the  bill  that  time  was  given  is 
not  sufficient.3 


Nor  can  he  delegate  the  power  to  sign 
the  bill.  Toledo,  etc.,  Co.  v.  Rogers.  4S 
Ind.  427.  See,  also,  as  to  the  character 
of  the  duty.  Emerson  v.  Clark,  2  Scam. 
4S9;  People  v.  Anthony,  25  111.  App. 
532.  S.  C.  21  N.  E.  Rep.  7S0. 

1  Consaul  v.  Lidell,  7  Mo.  250;  Cra- 
norr.  School  District,  iS  Mo.  App.  397; 
Wright  :•.  Judge  of  Superior  Court.  41 
Mich.  726. 

3  United  States  v.  Carey,  no  U.  S. 
51;  Kshinka  :\  Cawker,  16  Kan. 
63;  Gallaher  v.  Southwood.  1  Kan.  143; 
Brown  v.  Rhodes.  1  Kan.  559. 

3  Benson  v.  Baldwin,  108  Ind.  106; 
City  of  Indianapolis  V.  Kollman,  ;<)  Ind. 
504;  Nye  v.  Lewi-.  65  Ind.  ii<>,  Schoon- 
over  v.  Reed,  '•;  Ind.  313;  Goodwin  v. 
Smith.  72  Ind.  113;  Applegate  v.  White. 


79  Ind.  413;  Robinson  v.  Johnsoi 
Ind.  535;  Greenup   v.  Crooks,  50  Ind. 
410;  Rinehart  v.  Bowen,  44  Ind. 
Singer,  etc.,  Co.  V.  Struckman,  72  Ind. 
601;  Fulkerson  v.  Armstrong,  39  Ind. 
472;    Columbus,   etc.,   Co.    v.    Powell, 
40   Ind.  37;  Bargis  v.  Pamir,  45  Ind. 
41;  Logansport,  etc.,  Co.  v.  Davidson, 
51    Ind.    472;     Louisville,   etc.,    Co.  v. 
Harrigan,  .(4  Ind.  245;   Loy  v.  1.  ■ 
Ind.  404;   La   Rose  v.  Logansport  Nat. 
Bank,  102   Ind.  332;  Robinson   v.  An 
derson,  [06  Ind.  152.     The  ordergrant- 
ing  time  must  be  made  in   term.     City 
of  Westminster  v.  Shipley,  68  Md.  6io, 
1  5    Atl.    Rep.    365;     Wade     V.     Bryant 
.  7  S.W    B  3      1 

State.  25  Tex    22.,.  S  S.   W     Re 


foi 


ERROR  IN  JUDICIAL   PROCEEDINGS. 


§  802.  Presenting  the  Bill  to  the  Judge — If  the  bill  is  presented 
to  the  judge  for  his  signature  within  the  time  prescribed  by  the 
order,1  the  party  does  not  lose  his  right  to  have  the  bill  signed 
and  tiled.  The  bill  must  show  on  its  face  that  it  was  presented 
within  the  time  allowed.  It  is  not  sufficient  that  the  date  be 
indorsed  on  the  bill.2 

§  803.   Time  can  not  be  Extended  after  Close  of  the  Term — The 

time  fixed  during  term  can  not  be  extended  by  an  order  in  va- 
cation.3 The  one  grant  of  time  beyond  the  term  exhausts  the 
power  of  the  court.  It  will  not  avail  a  party  to  show  that  there 
has  been  a  grant  of  additional  time,  for  with  the  close  of  the 
term  the  authority  of  the  court  terminates.4     The  Indiana  cases 


1  If  the  bill  is  presented  to  judge  in 
due  time,  the  failure  to  sign  in  time 
will  not  impair  the  rights  of  the  party. 
Creamer  v.  Sirp,  91  Ind. 366;  Hamm  v. 
Romine,  9S  Ind.  77;  Robinson  v.  An- 
derson, 106  Ind.  152. 

2  Buchart  v.  Burger,  115  Ind.  123; 
Bierly  v.  Harrison,  123  Ind.  516;  Orton 
v.  Tilden,  no  Ind.  131;  Hormann  v. 
Hartmetz,i28Ind.353;  McCoy  r.  State, 
121  Ind.  160;  Buckner  v.  Spaulding,  127 
Ind.  229;  City  of  Plymouth  v.  Fields, 
125  Ind.  323;  White  v.  Gregory,  126 
Ind.  95;  McCormick,  etc.,  Co.».  Maas, 
121  Ind.  132.  Where  the  bill  appears 
from  the  record  to  have  been  signed  and 
filed  within  the  time  allowed, the  absence 
of  a  statement  of  the  date  of  its  presenta- 
tion to  the  judge  is  unimportant  Hale 
:.  Matthew,  11S  Ind.  527;  Shewalter -'. 
Bergman,  123  Ind.  155;  Short  v.  Chi- 
cago,  etc.,  Co.,  79  Iowa,  73;  Swem  7'. 
( iii  en,  9  Col.  35S. 

3  Brouse  V.  Price,  20  Ind.  216;  Har- 
rison v.  Price,  22  Ind.  165;  Van- 
nets  v.  Bradley,  29  Ind.  3S8;  McEl- 
fatrick  t.  Coffroth,  29  Ind.  37;  Earl  V. 
Dresser,  30  Ind.  n;  Thompson  v.  Egle- 
ton,  33  Ind.  300;  Vandoren  :■.  Kimes 
Ind. 582;  Whitworth  v.  Sour.  57  Ind. 
m;;  Robinson  v.  Johnson,  61  Ind.  535; 
Davidson  v.  State,  62  Ind.  276;   Lotz  :■. 


Briggs,  50  Ind.  346;  Rolcson  v.  Ilerr.  14 
Ind.  539;  Simonton  v.  Huntington,  etc., 
Co.,  12  Ind.  380;  Terre  Haute,  etc.,  Co. 
t'.Wilson,  16  Ind.  102;  Sweetzer  v.  Mc- 
Crea,  97  Ind.  404;  Kansas  City  v.  Allen, 
2S  Mo.  App.  133.  In  Rigler  v.  Rigler, 
120  Ind.  431,  it  was  said:  "In  respect 
to  presenting  or  signing  bills  of  excep- 
tion after  the  time  limited  therefor  has 
expired,  the  only  proper  course  to  pur- 
sue is  to  make  an  application  to  the 
presiding  judge  to  have  the  date  in- 
serted in  the  bill  nunc  pro  tunc!'  We 
suppose  that  the  court  did  not  mean  to 
decide  in  the  case  from  which  we  have 
quoted  that  a  party  has  a  right  to  have 
such  an  entry  in  ordinary  cases.  He 
certainly  can  have  no  such  right  unless 
a  strong  and  clear  case  of  fraud  or  ac- 
cident is  made.  Duvall  v.  Mastin,  28 
Mo.  App.  526;  St.  Louis,  etc.,  Co.  v. 
Holman, 45  Ark.  102;  Louisville,  etc., 
Co.  v.  Turner,  Si  Ky.  489. 

4  Bartley  v.  State,  in  Ind.  35S;  Mar- 
shall v.  State,  123  Ind.  128.  See  Hake 
v.  Strubel,  121  111.  321,  12  N.  E.  Rep. 
676;  Markland  v.  Albes,  81  Ala.  433,  2 
So.  Rep.  123;  Franco-Texan  Land  Co. 
v.  Chaptive  (Tex.),  3  S.  W.  Rep.  31; 
Hawes  v.  People,  129  111.  123,  21  N.  E. 
Rep.  777. 


BILLS  OF  EXCEPTION 

referred  to  in  the  note  to  the  last  sentence  declare  that  the 
time  can  not  be  extended  by  agreement  in  criminal  cases,  but 
the  cases  cited  in  the  former  note  indicate  that  time  may  be 
extended  by  agreement,  in  other  cases. 

§  804.  Bills  filed  in  Term — There  is  an  important  difference 
between  cases  where  the  bill  is  filed  in  term  and  those  w  I 
the  bill  is  not  filed  until  after  the  close  of  the  term.  In  the  lat- 
ter case  the  record  entry  must  affirmatively  show,  as  we  have 
said  in  a  preceding  paragraph  of  this  chapter,  that  time  bevond 
the  term  was  given,  while  in  the  former  case  there  is  no  neces- 
sity for  such  a  record  statement  There  is  substantial  agree- 
ment that  there  need  be  no  such  record  entry,  although  there  is 
some  diversity  of  opinion  as  to  the  grounds  upon  which  the 
conclusion  rests.1  We  suppose  that  where  the  bill  is  filed  dur- 
ing the  term  the  fair  and  reasonable  presumption  is  that  time 
to  reduce  the  exceptions  to  writing  was  given  at  the  time  they 
were  taken,  inasmuch  as  any  other  conclusion  would  be  op- 
posed to  the  general  principle  that  what  is  done  during  the  term 
is  presumed  to  have  been  effectively  and  rightfullv  done  unless 
the  contrary  appears. 

§  805.  Filing  After  Term — Abill  of  exceptions,  although  signed, 
is  not  part  of  the  record  until  it  is  tiled.  A  record  entrv  must 
be  made  showing  its  filing  and  the  date.  It  has  been  held  in 
many  cases  that  the  filing  must  be  shown  by  an  independent 
record  entry  and  that  it  can  not  be  shown  bv  a  recital  in  the 
bill.2     But  it  seems  clear  under  our  present  statute  that  if  the 

1  Wysor  v.  Johnson  (Ind.  Sup.  Ct.),  Fletcher  V.  State,  40  Ind.  124;    Stewart 

30  N.  E.  Rep.  144;  Noblesville,  etc.,  Co.  v.  State,  24  Ind.  14:;   Dunn  - 

:  .  Teter,  1  Ind.  A.pp,  322;   Pitzer  v.  In-  Ind.  259;   Fitzenrider  v.  1  Ind. 

dianapolis,  etc.,  Co., 80  Ind.  569;  Boyce  23S;   Porl    v.  Russell,  36  Ind.  60;  Jenks 

v.   Graham,  91    Ind.    |.2o;    Calverl   v.  -■.  State,  39  [nd.  1. 

State,  91  Ind.   1.73;    Landers  v.  Beck,  92  '  In  Guirl  v.  Gillett,  1:4  Ind.  501.  the 

Ind.  49,  52;  Lake  Erie,  etc.,  Co.  v.  Fix,  rule  was  thus  expressed :    "A  bill  of  ex- 

SS  Ind.  381;  Voider  v.  Sidener,  S6  Ind.  ceptions  only  becomes  a  part  of  the  rec- 

545;    Hoard   v.  Eperson,  50   Ind.   275;  ord  after  it  has  been  duly  presented  to  the 

Flory  v.  Wilson.  S3  Ind.  391;   Harrison  presiding  judge  and  has  been  signed  and 

:•.  Price,  22    Ind.  [65;    Johnson  v.  Bell,  tiled    by    him.     The    hill    itself  can    not 

10  Ind.  303;    Ogborn   v.    Hoffman,    52  show  when  it  was  filed.     This  must  ap- 

Ind.439;    Nichol  v.Thomas,  53  Ind. 42;  pear  by  the  record   independent   of  the 


•60 


ERROR  IN  JUDICIAL  PROCEEDINGS. 


bill  is  presented  to  the  judge  in  due  season  the  bill  is  effective 
although  not  signed  or  filed  until  after  the  expiration  of  the  pre- 
scribed time.  This  is  so  for  the  reason  that  when  so  presented 
it  becomes  the  duty  of  the  judge  to  sign  and  file  it.1  The  bill 
can  not,  however,  be  part  of  the  record  until  it  is  filed.2  But 
the  time  of  filing  is  no  longer  the  important  consideration,  for 
if  the  bill  is  presented  to  the  judge  and  that  properly  appears 
in  the  bill,  it  will  be  a  part  of  the  record,  although  not  filed  un- 
til after  the  time  allowed  has  expired.3 

§  806.  Form  of  the  Bill — The  form  of  a  bill  of  exceptions  is  of 
comparatively  little  importance.  The  courts  will  give  it  a  rea- 
sonably liberal  construction,  but  they  will  not  supply  omissions 
nor  remedy  material  defects.  If  the  substance  of  the  bill  is 
such  as  to  fully  and  fairly  present  the  questions,  purely  formal 
defects  and  irregularities  may  be  disregarded.4 


bill."  Engleman  v.  Arnold,  nS  Ind.  Si; 
Jones  v.  Jones,  91  Ind.  72;  Columbus, 
etc.,  Co.  v.  Powell,  40  Ind.  37;  Fulker- 
son  v.  Armstrong.  39  Ind.  472;  City  of 
Indianapolis  v.  Kollman,  79  Ind.  504; 
Logansport,  etc.,  Co.  v.  Davidson,  51 
Ind.  472;  La  Rose  v.  Logansport,  etc., 
Bank,  102  Ind.  332;  State  v.  Leach.  71 
Iowa,  54;  Mogan  v.  Thompson,  13  Ore. 
230;  Horner  v.  Hoadley,  97  Ind.  600; 
Watson  v.  Watson,  53  Ark.  415,  14  S. 
W.  Rep.  622. 

1  Vincennes,  etc.,  Co.  v.  White,  124 
Ind.  376;  Terre  Haute,  etc.,  Co.  v.  Bis- 
sell,  108  Ind.  113. 

2  Louisville,  etc.,  Co.  V.  Harrigan,  94 
Ind.  245;  Dunn  v.  Hubble,  Si  Ind.  489; 
Shulse  V.  McWilliams,  104  Ind.  512; 
Stewart  v.  State,  113  Ind.  505;  Hessian 
v.  State,  116  Ind.  58;  Pratt  v.  Allen,  95 
Ind.  404;  Loy  v.  Loy,  90  Ind.  404; 
Sherlock  v.  First  National  Bank,  53 
Ind.  73. 

3  The  appropriate  mode  of  evidencing 
the  filing  is  to  make  a  vacation  order. 
This  when  copied  into  the  record  shows 
the  filing  is  the  correct  mode.  Dinwid- 
die   v.  Jacobs,  82   Mo.   195;    Jones   v. 


Christian,  24  Mo.  App.  540.  It  is,  how- 
ever, held  by  some  of  our  cases  that 
where  the  clerk's  certificate  recites  that 
the  transcript  contains  all  papers  on 
file,  the  filing  is  sufficiently  shown. 
Hull  v.  Louth,  109  Ind.  315,  336;  Arm- 
strong v.  Harshman,93  Ind.  216;  Oliver 
v.  Pate.  43  Ind.  132;  Porter  v.  Choen, 
60  Ind.  338,  346.  But,  as  the  filing 
must  appear  to  be  within  the  time 
granted,  the  certificate  of  the  clerk  can 
not  be  effective  unless  it  appears  to 
have  been  made  within  that  time.  It 
seems  to  us  that  the  true  and  safe  rule 
is  to  require  a  vacation  order  in  all 
cases,  but,  as  we  have  seen,  our  decis- 
ions declare  a  somewhat  different  doc- 
trine. 

4  In  the  case  of  Kleinschmidt  v.  Mc- 
Andrews,  117  U.  S.2S2,  2S6,  it  was  said: 
"And  whatever  brings  upon  the  record, 
properly  verified  by  the  attestation  of 
thejudge.mattersoffact  occurring  at  the 
trial,  on  which  the  point  of  law  arises, 
which  enters  into  the  ruling  and  decis- 
ion of  the  court  excepted  to,  answers 
sufficiently  the  proper  description  of  a 
bill    of  exceptions."     To  substantially 


BILLS  '  >F   EX<   EPTIONS. 


761 


§  807.  Requisites  of  the  Bill — General  Doctrine— It  is  always 
sential  that  the  bill  should  show  the  matters  of  fact  out  of  which 
the  matters  of  law  arise,  the  grounds  of  objections  where  spe- 
cific objections  are  required,  and  the  ruling  or  decision  to 
which  the  exception  is  taken.1  The  time  of  taking  the  excep- 
tions must  be  shown,  since,  as  we  have  elsewhere  said,  an 
ception  must  be  taken  at  the  time  the  ruling  or  decision  sought 
to  be  brought  in  review  is  made.2  The  statements  of  the  bill 
must  be  so  full  and  definite  as  to  present  to  the  appellate  tri- 
bunal all  matters  essential  to  a  clear  and  accurate  apprehension 
of  the  questions  involved.3  A  bill  of  exceptions  is  taken  by  a 
party  for  the  purpose  of  making  it  appear  to  the  reviewing 
court  that  there  is  error  in  the  proceedings  of  the  trial  court 
and  that  he  has  taken  the  necessary  steps  to  make  the  error 


the  same  effect  are  the  cases  of  Wilson 
v.  Giddings,  2S  Ohio  St.  554,  561 ;  Ach- 
eson  v.  Sutliff,  iS  Ohio.  122. 

1  In  the  Estate  of  Page.  57  Cal.  23S, 
239,  the  court  said:  "An  exception  is  an 
objection  upon  a  matteroflawtoa  decis- 
ion made  by  a  court.  To  make  it  effect- 
ual in  a  bill  of  exceptions  the  objection 
should  be  stated  and  also  the  ground 
upon  which  it  was  made."  The  court 
cited  Griswold  v.  Sharp,  2  Cal.  17,  23: 
Touchard  v.  Crow.  20  Cal.  150.  163; 
Tucker  V.  Jones,  S  Mont.  225.  19  Pac. 
Rep.  571;  Blizzard  v.  Hayes,  46  Ind. 
166;  Grubbs  v.  Morris.  103  Ind.  166; 
Mooney  V.  Kinsey,  90  Ind.  33;  Louis- 
ville, etc.,  Co.  v.  Worley,  107  Ind.  520. 
See  ante,  §  771.  "The  ground-  of  ob- 
jections must  appear  of  record."  See. 
also,  Stump  v.  Fraley,  7  End. 679;  Wiler 
v.  Manlev.  51  Intl.  [69;  Richardson  v. 
llowk.45  Ind. 451;  McKinney  v.  Shaw, 
etc.,  Co.,  51  End.  219;  Miles  v.Vanhorn, 
17  End.  245;  Baker  v.  McGinnis6,  22 
Ind.  257;  Ammerman  v.  Crosby,  26  End. 

45 1- 

2  Leyner  v.  State.  8  End.  490;  John- 
son v.  Bell.  10  End.  303;  State  V.  Ra- 
bourn,  14  Ind.  300;  Crandall  v.  First 
National    Bank,   61    Ind.   349.    1' 


Makepeace.  S    Blackf.   575;   Tucker  v. 

Jones,  8   Mont.   225.  19  Pac.  Rep.  571; 

Sohn    -.  Marion,  etc..   Co.,   73   Ind.   77; 

Nye   v.    Lewi-,   65   Ind.  326;    Roy   v. 

Union,  etc..  Co.  (Wyo.),  26  Pac.  Rep. 
Pacific  Exp.  Co.  V.  Malin,  132  I '. 

S.  531;   Kendell  v.  Judah,  63  Ind.  291 ; 

Walton  v.  United  States.  9  Wheat. 651 ; 

Sheppard  v. Wilson, 6  How.  (U.  S.)  260; 

Poole  v.  Fleeger,  11  Pet.  185;   Brown  v. 

Clarke.  4  How.  (U.  S.)  4.  15;   Turner  :. 

Yates,  id  How.  (U.S.)  14.      In  the  ea-e 

last  named   it   was   said:     "The   record 

must  show  that  the  exception  was  taken 

at  that  stage  of  the  trial  when  its  cause 

arose." 

3  In  Hooper  V.  State  (Texas).  [<  - 
W.  Rep.  655,  it  was  declared  that: 
"  Bills  of  exceptions  must  he  so  full  and 
oertain  in  their  statements  that  in  auA 
of  themselves  they  will  disclose  all  that 
is  necessary  to  manifest  the  supposed 
error.     Eldrid  :         .  1 .  Tex.  App. 

208;  Davis  V.  State.  14  Tex.  A  pp.  645; 
Walker:.  State, 9 Tex. App.  200;  Hen- 
ning  V.  State.  2  \  Tex.  App.  315,6  S.W. 
Rep.  137"  See.  aKo.  Thompson  v. 
State.  29  Tex.  App  S.  W.  Rep. 

206. 


7(32  ERROR   IN  JUDICIAL  PROCEEDINGS. 

available.1  A  bill  which  shows  a  wrong  ruling  but  does  not 
contain  enough  to  make  it  appear  that  the  proper  steps  were 
taken  to  make  the  wrong  ruling  available  as  error  is  ordinarily 
insufficient.  It  is,  of  course,  true  that  in  some  instances  the 
record  proper  discloses  some  of  the  steps  necessary  to  impress 
upon  a  wrong  ruling  the  element  of  availability,  and  where 
this  is  so  there  is  no  necessity  for  incorporating  in  the  bill  what 
is  part  of  the  intrinsic  record,  or  record  proper.  As  an  illus- 
tration of  the  effect  of  our  statement  that  where  one  of  the  steps 
required  to  make  a  wrong  ruling  available  appears  by  the  rec- 
ord the  bill  need  not  show  it.  we  may  take  the  case  where  evi- 
dence was  wrongly  excluded  and  there  is  a  motion  for  a  new 
trial ;  in  such  a  case  the  excluded  evidence  must  be  brought 
into  the  record  as  offered,2  but  the  bill  need  not  set  forth  the 
motion  for  a  new  trial,  as  that  motion,  under  our  practice,  is 
part  of  the  intrinsic  record.3 

§  808.  Stating  the  Exceptions — In  a  work  on  practice  it  is  said 
that  it  is  the  duty  of  counsel  to  take  a  bill  upon  each  exception 
stated,  and  a  bill  stating  several  distinct  exceptions  is  not  a 
proper  one.4  But  this,  as  we  believe,  is  a  misapprehension  of 
the  rule,  as  the  cases  referred  to  by  the  authors  who  declare 
the  doctrine  stated  will  show  upon  careful  examination.5  What 
the  rule  requires  is  that  each  exception  shall  be  taken  at  the 
time  the  ruling  is  made  and  to  the  specific  ruling,  for  excep- 
tions can  not  be  taken  in  gross,  but  it  does  not  require  that 
there  shall  be  a  separate  bill  for  each  exception.  Where  the 
exceptions  are  taken  at  the  time  to  specific  rulings  and  time  is 

1  Tucker  v.   Smith.  68  Tex.  473,  3  S.  presently   show   it    is   only  the  motion 

W.  Rep.  671;    Monroe  v.  Snow,  33  111.  that  is  part  of  the  record  proper.     In 

App.  230,  S.  C.  23  N.  E.  Rep.  401.     In  some  jurisdictions  the  motion  for  a  new 

the  case  last  cited  ii  was  held   that  the  trial  must  be  embodied  in  the  bill  of 

bill   will    be    most    strongly    construed  exceptions.    Demske  v.  Hunter,  23  Mo. 

against  the  party  by  whom  it    is   taken.  App.  466;   Furher   v.  Cunway,    23   Mo. 

3  Craft  v.  Dalles  City  (Ore.),  27  Pac.  App.  412;  NcNeil    v.  Home  Ins.  Co., 

Rep.  [63;  Stanley  V.  Smith,  15  Ore.  505,  30  Mo.  App.  306. 

16  Pac.  Rep.  174.  *Troubat  v.  Haleys  Pr.,  §  701. 

8  Martin    v.    Harrison,   50    Ind.   270;  5  Rogers  V.    Marshall.    1    Wall.   044; 

Moon-  v.  State,  65   Ind.  213;    Hunter  v.  Harvey  V.  Tyler,  2  Wall.  328. 
i  [atfield,  68  Ind.  416.      Bui    as    we  shall 


BILLS  OF  EXCEP1  763 

then  obtained  to  reduce  the  exceptions  to  writing,  they  may 
all  be  exhibited  in  one  bill.  In  other  words,  it  is  not  always 
necessary  that  there  should  be  a  separate  bill  for  each  excep- 
tion,1 although  there  maybe  instances  where  the  time  of  taking 
exceptions  and  the  character  of  the  exceptions  are  such  as  to 
require  separate  bills.  The  bill  must,  however,  state  each  ex- 
ception separately,  the  specific  grounds  on  which  it  rests 
(where  such  grounds  are  required  to  be  stated),  and  show  each 
ruling  to  which  the  exceptions  were  addressed.2 

§  809.   Facts  on  which  Exceptions  are  Based  must  be  Stated— It 

is  not  enough  to  state  exceptions  in  the  bill.  The  facts  on 
which  the  exceptions  are  based  are  quite  as  important  as  the 
exceptions.3  Where  the  facts  are  not  stated  there  is  nothing 
demanding  consideration,  for  without  them  neither  the  charac- 
ter nor  the  influence  of  the  ruling  can  be  ascertained  or  de- 
termined. 

§  810.  Duty  of  the  Trial  Judge— It  is  the  duty  of  the  trial  judge 
to  cause  all  matters  to  be  incorporated  in  the  bill  of  exceptions 
as  the  law  requires  before  he  signs  the  bill.4     As  we  shall  pres- 

1  In  Mills  v.  Buchanan,  36  Ind.  490.  Miss.  502;   Tit/or  v.  Indianapolis,  etc.. 

502,  it  was  said:     "A  bill  of  exceptions  Co.,  So  Ind.  569. 

may  be  general,  embracing  everything  3  Kelly  v.  Murphy,  70  Cal.  560,  12  Pac. 

that  has  to  be  made  part  of  the  record  Rep.   467;   Vass    v.    Commonwealth,  3 

by  such  bill,  or  it  may  embrace  but  one  Leigh  (Va.  .  786,  S.  C.  24  Am.    Dec. 

question."     This    general   doctrine    is  695;   Hennessey  v.  State,  23  Tex.  App. 

declared  in  Brown  v.  Hall,  85  Va.  146,  340,  5   S.   \V.   Rep.   215;     Phoenix, 

7  S.  E.  Rep.  1S2.  See  Anderson  v.  Co.  v.  Raddin,  120  U.  S.  183,  7  Sup. 
Ames,  6  Iowa,  4S6.  Ct.  Rep.  500;  State  V.  Clement.  1  5  (  're. 
a  Doe  v.  Peeples,  1  Ga.  1;  State  v.  237,  14  Pac.  Rep.  41. >;  Johnson  v.  Jen- 
Weber,  22  Mo.  231;  Church  :■.  Drum-  nings,  to  Gratt.  1,  S.  C.  60  Am.  Dec. 
mond,7  Ind.  17;  Porche  v.  La  Blanche,  323,  and  note;  Kennedy*.  Shaw,  38 
12    La.   Ann.  77S;   Brown  v.  Brown,  7  Ind.    #4;     Berlin  v.  Oglesbee,  65    Ind. 

Mo.   -8S;    Doe  V.  Natchez    Ins.  Co.,  8  S.      308;   Johns, mi   V.  State.  65  Ind.   269;     Mc 
&   M.  1  Miss.)  197;    Fields    V.    Hunter.   8      C rears    V.  Cockrill,    J   Kan.   37;    Inferior 

Mo.  us-.  Morrissej  v.  People,  n  Mich.     Court  v.  Monroe,  21  Ga.   17c  J" 
327;  Johnson  v.  Jennings,  to  Gratt.  1.     v.  Ballew,  2  Tort,  State  x 

There  may  be    several    hills,  and    where      Jack-on.  12    I. a.   Ann.  071 

they    refer    to    one    subjeel    all    may    he  4  It    is    undersl I     ^i    course,  that    It 

considered.      Doe  V.  (iildart.o  Miss.     5      is  the  duty  of  1  trial    udge  to  give  a  full 

How.)  606;  Lindsey   v.  Henderson,  27     and   air  bill  of  exceptions    Thesetthng 


764  ERROR   IX  JUDICIAL  PROCEEDINGS. 

ently  show,  the  duty  of  the  judge  is  to  cause  all  parol  evidence 
to  be  embodied  in  the  bill  before  he  signs  it,  and,  under  the 
code,  to  prevent  any  documentary  evidence  from  being  inserted 
unless  such  evidence  is  appropriately  identified  and  the  proper 
place  for  its  insertion  indicated  by  the  words,  "here  insert." 
It  is  sufficient  for  our  present  purpose  to  say  that  where  the 
bill  is  not  complete  the  judge  should  not  sign  it.  The  reason 
for  this  rule  will  appear  in  the  paragraphs  that  follow. 

§  811.  Effect  of  the  Statements  and  Recitals  of  the  Bill— A  bill 
of  exceptions,  signed,  filed  and  made  part  of  the  record  as  the 
law  requires,  imports  absolute  verity.1  This  effect  is  due  to  the 
fact  that  the  law  assumes  that  it  is  a  special  instrument  brought 
under  the  immediate  supervision  of  the  judge,  and  hence  sub- 
jected to  a  closer  scrutiny  than  orders  or  entries  made  by  the 
clerk,  although  directed  by  the  judge.  The  result  of  this 
principle  is  that  where  the  bill  recites  special  matters  different 
from  the  entries  in  the  order  book  or  other  record,  it  controls 
and  other  recitals  yield  to  it.2 

£  812.  Making  Error  Apparent — It  is  not  necessary  that  the 
prejudicial  influence  of  a  wrong  ruling  should  be  made  to  ap- 
pear by  direct  recitals  or  statements,  but  it  is  necessary  that 
the  statements  or  the  recitals  of  the  bill  should  be  full  enough 
to  show  the  nature  and  influence  of  the  ruling  or  decision  upon 
which  error  is  alleged,  and  so  show  it  as  to  authorize  the  infer- 
ence that  the  wrong  ruling  was  prejudicial  or  probably  preju- 

of  the  bill  is  his  own  act,  and  it  would  Ind.  302;     Alley  v.   State,  76  Ind.  94; 

be  a  gross  breach  of  duty  to  deny   or  Cincinnati,  etc.,  Co.  v.  McFarland,  22 

impair  a  party's  rights   by  a  refusal   to  Ind.  459;   Carmichael    :\   Shiel,  21  Ind. 

grant    a  bill   fully  and  fairly  exhibiting  66;   Doe  v.  Smith,  1   Ind.  451;   States, 

the  case.  Flemons,  6   Ind.  279.     In  the  case  last 

1  Walls    v.    Anderson,    etc.,   Co.,  60  named    it   was  said,    in   speaking  of  a 

Ind.  56;   Beavers  v.  State,  5S  Ind.  530;  variance   between    order    book    entries 

Thames,  etc.,   Co.  v.  Beville,  100  Ind.  and  the  bill,  that:     '"The  bill  of  exn-p- 

309.     See,  generally,  Blizzard  v.   Bliz-  tions  will  be  taken  as  true,  and  will  cor- 

zard,   4S  Ind.    =540;     Ryan    v.   Burkam,  rect  the  other  portions  of  the  record, 

42  Ind.  507,  524;  Jellv    ''.  Roberts,   50  for  the    reason    that    the    minutes    are 

Ind.    1,  S;    Longworth  v.   Higham,  89  kept  by  the  clerk,  but  the  bill  of  excep- 

[nd.    };2.  tions  brings   the  facts  distinctly  to  the 

'  Indiana,    etc.,    Co.  v.    Adams,    112  attention  of  the  judge  who  signs  it." 


BILLS  OF  EXCEPTION 

dicial.  Where  there  is  not  enough  in  the  bill  to  justify  the  in- 
terence  that  the  ruling  or  decision  complained  of  was  injurious, 
or  probably  injurious,  error  is  not  made  apparent.1  It  is  not  al- 
ways necessary  to  incorporate  all  the  evidence  in  the  bill  of 
exceptions  in  order  to  supply  grounds  for  the  inference,  or 
presumption,  that  the  wrong  ruling  was  probably  harmful, but, 
as  will  hereafter  be  shown,  it  is  frequently  necessary  to  do  so. 

§  813.  Rulings  made  in  the  Formation  of  Issues— Rulings  made 
in  the  formation  of  issues  can  not  be  regarded  as  rulings  con- 
cerning the  conduct  of  the  trial.  As  this  is  true  such  rulings 
can  not  be  considered  as  included  in  leave  given  for  time  to 
reduce  to  writing  exceptions  taken  during  the  trial,  so  that  ex- 
ceptions should  be  taken  to  such  rulings  at  the  time  they  are 
made,  and  at  that  time  leave  to  put  the  exceptions  in  writing 
should  be  obtained.-  Leave  given  upon  overruling  a  motion 
for  a  new  trial  can  not  reach  back  and  take  up  rulings  made  in 
the  formation  of  issues.  This  doctrine  does  not  trench  upon 
the  rule  that  a  bill  of  exceptions  taken  under  leave  granted  at 
the  time  of  overruling  a  motion  for  a  new  trial  embraces  ex- 
ceptions taken  during  the  trial,  for  the  reason  that  a  trial  may 
with  propriety  be  regarded  as  one  entire  proceeding,3  whereas 

lInCecconi».  Rodden,  147  Mass.  164,  Warner,    2    Aik.    (Vt.)    26;    Knox    v. 

16  N.  E.  Rep.  749,  it  was  said:     "Ex-  Noble,  25   Kan.  449.  451;    Eastman  v. 

ceptions  to  a  question  to  a  witness  can  Godfrey.  15  Kan.  341;  Gray  v.  Thomas, 

not  be  considered   which  do   not   show  iS  La.  Ann.  412. 

how  the    question   was    answered,  and  2  Smith   v.   Flack.   95   Ind.   116,    126; 

that  the  answer  was  in  some  way  un-  Boyce  v.  Graham,  91  Ind.  420;  Thomas 

favorable  to  the  part}' excepting."    The  v.  Griffin,  1  Ind.  App.  457,  citing  Rhine 

cases  of  Kershaw  v.  Wright,  115  Mass.  v.  Morris,  96  [nd.  81;  Sohn  v.  Marion, 

361,  and  Pennock   v.    McCormick,   120  etc.,  73    Ind.  77;     City    of   Seymour    v. 

Mass.  275, were  cited.     See,  also,  Tay-  Cummins,  119  Ind.  148.     See  Wabash, 

lor  V.  Flint,  35  Ga.  124;     Ilovt  V.  Will-  etc..  Co.  v.  People.  106  til.  652;  Mullany 

iams,  41    Mo.  270;     State  v.  Cow, in,  7  v.  Firsl  National  Bank,  89  Ind. 424, 425; 

Iredell  L.  239;   Armstrong  v.  Clark,  17  Caldwill  v.  Gilmore,  86  Ind. 428;  Strib- 

Ohio,  495;     Webster  v.  Calden, 55  M..-.  ling  v.  Tripp,  86  [nd.  166,  169. 

165;  State  v.  Bennett,  75  Me.  590;  Tip-  8  Jenks  v.  State,  39  Ind.  1.    Barnaby 

per  v.  Commonwealth,  1    Metef.  (Ky.)  v.  State,   106   Ind.   539,   541;     Bn 

6;    Jones  v.  Doe,  1   Ind.  109;    Holmes  State,  87  Ind. 450.     In  Ryman  v.  Craw- 

v.  Gayle,   1    Ala.   517;    McDougal    v.  ford,  86  Ind.  262,  the  difference  between 

Fleming,  4  Ohio.  388;     Richardson   v.  the  two  classes  of  eases  is  shown. 
Denison,  1   Aik.  (Vt.)  210;    Stearns  v. 


66 


ERROR   IX   JUDICIAL   PRO<   I  I  DINGS. 


the  formation  of  the  issues  is  not  part  of  the  trial  in  any  just 
sense. 

§  814.  Collateral  Motions — Collateral  motions,  such  as  motions 
to  make  more  specific,  to  separate,  and  the  like,  must  be  brought 
into  the  record  by  a  bill  of  exceptions,  or  by  a  special  order  of 
the  court  making  them  a  part  of  the  record.1  To  this  class  of 
motions  belong  motions  to  dismiss.2  It  is  necessary  that  the 
grounds  of  such  motions  and  the  specific  relief  pra}red  should 
be  appropriately  specified  inasmuch  as  there  is  no  other  mode 
of  bringing  such  matters  into  the  record,  and  without  them,  as 
we  have  repeatedly  said,  no  rulings  are  properly  presented  for 
review.3 

§  815.  Recitals  in  Direct  Motions — Recitals  of  facts  in  direct 
motions  or  appendant  exhibits  do  not  go  into  the  record  as 
part  of  the  motion.     Such  recitals   and   exhibits  can  only  be 


1  McDonald  v.  Geisendorff,  128  Ind. 
153;  Thomas  :•. Griffin,  1  Ind.  App.457; 
Balue  v.  Richardson,  124  Ind.  4S0; 
Boj'ce  v.  Graham,  91  Ind.  420;  Man- 
hattan Life  Ins.  Co.  v.  Doll,  80  Ind. 
113;  State  v.  King,  S2  Ind.  58;  Rhine 
v.  Morris,  96  Ind. Si;  Stanton  v.  State, 
71  Ind.  503;  Nichols  :■.  State,  65  Ind. 
512;  School  Town  of  Princeton  :•.  Geb- 
hart,  6]  Ind.  [87;  Myers  v.  Conway,  62 
Ind.  474;  Greensburgh,  etc.,  Co.  v.  Sid- 
ener,  40  Ind.  424;  Wilson  :■.  Piper,  77 
Ind.  437;  Mcllvain  v.  Emery,  SS  Ind. 
Ifelter  v.  Hulett,  92  Ind.  426; 
Lynch  v.  Jennings,  43  Ind.  276. 

'-'  Sites  v.  Miller,  120  Ind.  19;  Board 
:■.  Small,  61  Ind.  318;  Burntrager  V. 
McDonald,  31  Ind.  277;  Washington 
Ice  Co.'  v.  Lay,  103  Ind.  48;  Board 
:.  Montgomery,  C09  Ind.  69;  Crumley 
V.  Hickman,  92  Ind.  38S;  Yost  v.  Con- 
roy,  92  Ind.  (.64,  S.  C .  |7  Am.  Rep.  156; 
Wilson  v.  1'iper,  77  Ind.  437;  Long  V. 
Town  of  Brookston,  79  Ind.  1S3;  Hicks 
: .  State.  S3  Ind.  4S3;  Evans  v.  Shafer, 
8N.  Ind.  92;   Louisville,  etc.,  Co.  v.  Head, 


80  Ind.  117;  Ferrier  v.  Deutchman,  51 
Ind.  21;  Conoway  v. Weaver,  1  Ind.  263; 
Aspinwall  v.  Board,  iS  Ind.  372;  Carr 
v.  Thomas,  34  Ind.  292 ;  Dritt  v.  Dodds, 
35  Ind.  63. 

3  In  Walker  v.  Steele,  121  Ind.  436, 
43S,  the  court  said:  "The  grounds  of 
the  motion  to  strike  out  the  disclaimer 
do  not  appear  in  the  bill  of  exceptions 
or  elsewhere  in  the  record,  therefore  if 
the  motion  had  been  one  which  the 
court  could  have  properly  entertained 
we  can  not  say  that  the  court  erred  in 
overruling  it.  If  no  reasons  were  as- 
signed, or  if  reasons  were  given,  if  they 
were  insufficient,  then  the  court  com- 
mitted no  error  in  overruling  the  mo- 
tion." It  may,  without  going  far  out 
of  the  direct  path,  be  proper  to  say  that 
motions  to  strike  out  must  clearly  des- 
ignate the  part  to  which  objection  is 
made,  and  that  this  can  not  be  done  by 
referring  to  pages  and  lines,  for  the 
transcript  on  appeal  ordinarily  makes 
the  pages  and  lines  different  from  what 
they  are  in  the  orignal  pleading. 


BILLS  OF   EXCEPTIONS. 


767 


brought  into  the  record  by  a  bill  of  exceptions.1  The  motion 
itself  may  be  in  the  record  without  a  bill  and  yet  its  statements 
of  facts  or  exhibits  not  be  part  of  the  record.  Thus,  matters 
of  evidence,  affidavits,  or  instructions  can  not  be  made  pari  of 
the  record  by  embodying  them  in  the  motion.2  The  direct 
motion  with  its  specifications  of  reasons,  causes  or  objections 
is,  however,  part  of  the  record  proper. 

§  816.  Rejected  Pleadings — Pleadings  rejected  on  motion  must 
be  brought  back  into  the  record  by  a  bill  of  exceptions.  In 
bringing  them  back  the  motion  and  the  ruling  must  be  brought 
with  them.  Without  the  motion  and  ruling  the  facts  upon 
which  the  exceptions  are  founded  can  not  be  regarded  as  in 
the  record.3 

§  817.  Instruments  that  may  be  brought  into  the  Record  by  a  Bill 
of  Exceptions — We  have  said  that  all  matters  not  exhibited  by 
the  record  proper  must  be  brought  in  by  a  bill  of  exceptions, 
or,  in  cases  within  the  statute,  by  a  special  order  of  the  court,4 


1  Ante,  §§  190,  191,  194. 

2  In  Clouser  v.  Ruckman,  104  Ind. 
5SS,  the  doctrine  was  thus  stated:  "  Re- 
citals in  a  motion  for  a  new  trial  can 
not  perform  the  office  of  a  statement 
required  to  be  incorporated  in  a  bill  of 
exceptions,  nor  can  the  recital  of  the 
clerk  take  the  place  of  such  a  state- 
ment." Chambers  v.  Butcher,  S2  Ind. 
50S;  Powers  v.  State,  S7  Ind.  144; 
Compton  v.  State,  89  Ind.  338;  Ilorton 
v.  Wilson,  25  Ind.  316;  Marks  v.  Ja- 
cobs, 76  Ind.  216;  Taylor  v.  Fletcher, 
15  Ind.  So;  Indianapolis,  etc.,  Co.  :•. 
Wvatt,  16  Ind.  204;  Round  v.  State,  14 
Ind.  493;  Thompson  v.  White,  18  Ind. 
373;  Whiteside  V.  Adams,  26  Ind.  250; 
llerringr.  State,  1  Iowa.  205;  Pharo 
V.  Johnson,  15  Iowa.  560;  Hart  V. 
Foley,  67  Iowa,  107;  Board  v.  Mont- 
gomery, 109  Ind.  69;  Holt  v.  Simons, 
14  Mo.  App.  450;  Robinson  v.  Suter, 
1^  Mo,  App.  599;  Kohn  v.  Lucas,  17 
Mo.  App.  29;   Berkley  :•.  Robes,  13  Mo. 


App.  502;  Shaughnessy  v.  St.  Louis, 
etc.,  Co.,  7  Mo.  App.  591 ;  Indianapolis, 
etc.,  Co.  tr.  Christian,  93  Ind.  360. 

3  Carrothers  v.  Carrothers,  107  Ind. 
530;  Scott  v.  Board,  101  Ind.  42;  Stott 
v.  Smith,  70  Ind.  29S;  Berlin  v.  Ogles- 
bee,  65  Ind.  30S;  Ammerman  v.  Cros- 
by, 26  Ind.  451;  Hill  v.  Jamieson,  16 
Ind.  125;  Schmidt  v.  Colley,  29  Ind. 
120;  Stanton  v.  State,  74  Ind.  503; 
Ward  v.  A.ngevine,  40  Ind.  415;  Meyer 
v.  Yesser,  32  Ind.  294;  Klingensmith  v. 
Reed,  31  Ind.  389;  S  Smith,  1  ^ 

Ind.  23;  Saunders  v.  Ileatou,  12  Ind. 
20;  Chrisman  v.  Melne,  6  Ind.  .)s7; 
Henderson  v.  Reed,  1  Blackf.  347. 

*  Ante,  §§  190,  191,  194.  We  do  not 
here  speak  of  making  pleadings  or  in- 
struments pari  of  the  record  by  a  - 
cial  order,  nor  do  we  mean  to  say  that 
some  of  the  instruments  mentioned  in 
this  paragraph  may  not  be  brought  up 
by  special  order. 


7(jg  ERROR   IN  JUDICIAL  PROCEEDINGS. 

and  nothing  can  be  added  that  will  more  clearly  express  the 
rule,  but  its  practical  operation  and  the  mode  of  its  application 
may  be  shown  more  clearly  by  referring  to  the  adjudged  cases. 
Affidavits  and  applications  for  a  change  of  venue  with  the  rul- 
ing and  exceptions  are  properly  brought  into  the  record  by  a 
bill  of  exceptions.1  Affidavits  for  a  continuance  may  be,  and 
usually  are,  brought  into  the  record  in  like  manner,2  and  so 
may  affidavits  in  support  of  a  motion  to  compel  a  party  to  give 
security  for  costs.3  Motions  for  judgment  for  costs4  and  motions 
to  tax  costs  are  effectively  and  appropriately  brought  into  the 
record  by  a  bill  of  exceptions.5  Affidavits  in  support  of  motions 
to  amend  and  all  motions  of  like  character  a  bill  of  exceptions 
will  effectively  bring  into  the  record.6  A  motion  to  modify  a 
judgment,7  for  judgment  on  the  pleadings'3  and  similar  motions 
may  be  brought  into  the  record  in  the  same  mode,  and  so  may 
motions  to  strike  out  interrogatories.'-'  Affidavits  in  support  of 
a  motion  for  a  new  trial  must  be  made  part  of  the  record  by 
bill,10  and  this  is  true  of  all  affidavits  of  the  same  general  class. 
The  cases  referred  to  show  that  almost  all  instruments,  whether 
motions  or  affidavits,  which  are  not  part  of  the  pleadings  may 
be  brought  into  the  record  by  a  bill  of  exceptions.  The  notable 
exception  to  the  rule  that  motions  must  be  made  part  of  the 

1  Smiths.  Smith.  77  Ind.  So;  Sidener  6  Swan  v.  Clark,  8o  Ind.  57;  Lewis 

v.  Davis.  87  Ind.  342;   Hoard  v.  Benson,  v.  E wing,  70  Ind.  282. 

83  End.  469;   Lawless  v.  Harrington,  75  7  Quill  v.  Gallivan,  10S  Ind.  235;  Ex 

Ind.   379;  Compton   v.    State,  S9  Ind.  farte  Hayes,  88  Ind.  1;  Adams  v.  La 

338;  Siebert  v.  State,  95  Ind.  471;  Ba-  Rose,  75  Ind.  471 ;  Pennsylvania  Co.  v. 

ker  v.  Simmons,  40  Ind.  442.  Niblack,    99    Ind.    149;     Forsythe     v. 

1  Long  v.  State.  46  Ind.  5S2;  Beard  Kreuter,  100  Ind.  27;  Whipple  v.  Shew- 

v.  State,  54  Ind.  413;  Colle  v.  State,  75  alter,  91  Ind.  114;    Evansville,  etc.,  Co. 

Tnd.  511.  Frank  (Ind.  App.)  29  N.  E.  Rep.  419. 

3  Hadlev  v.  Hadley,  82  Ind.  95.  8  Hill  v.  Jamieson,  16  Ind.  125.     See, 

*  Beard  v.  Hand,  SS  Ind.  1S3;  Leffel  generally,    Fairbanks  v.  Loring   (Ind. 

Obenchain,  90   Ind.  50;  Nutting  v.  App.).  29  N.  E.  Rep.  452. 

Losance,  27  Ind.  37.  9  Borchus  v.  Huntington,  etc.,  Asso., 

5  Gallimore  v.  Blankenship,  99  Ind.  97  Ind.  1S0;  Stott  v.  Smith,  70  Ind.  298. 
390;  Jamieson  v.  Board,  56  Ind.  466;  10  Elbert  v.  Hoby,  73  Ind.  in;  Beck 
Conner  r.  Winton,  10  Ind.  25;  Smaw-  v.  State,  72  Ind.  250;  McDaniel  v.  Mat- 
lev  v.  Stark.  9  Ind.  3S6;  Urton  v.  tingly.  72  Ind.  349;  Williams  r.  Potter, 
Luckey,  17  Ind.  213;  State  v.  Saxon,  72  Ind.  354;  Gandolpho  v.  State,  33 
42I1KL4S4;  Tilman  v.  Harter,  38  Ind.  1.  Ind.  439. 


BILLS  OF   EXCEPTK  >NS. 


769 


record  by  a  bill  or  special  order,  is  a  motion  for  a  new  trial, 
that  motion,  as  we  have  seen,  is  a  direct  motion  and,  under 
our  decisions,  is  part  of  the  record  proper.1 

§  818.  Making  Written  Instruments  part  of  the  Bill  by  Refer- 
ence— General  Hule — Under  the  provisions  of  the  code  written 
instruments  offered  in  evidence  may  be  brought  into  a  bill  of 
exceptions  by  reference.2     But  the  statutory  requirements  must 


1  As  the  office  of  a  bill  of  exceptions 
is  an  important  one  it  may  not  he  profit- 
less to  refer  to  other  eases.  A  bill  of  ex- 
ceptions is  necessary  to  show  such  pro- 
ceedings and  instruments  as  those  below 
enumerated.  Answers  of  jurors  when 
polled.  Medler  v.  State,  26  Ind.  171. 
Affidavits  in  support  of  a  motion  and 
in  opposition.  Veneman  v.  McCurtain 
(Neb.),  50  N.  W.  Rep.  a  955;  McCann 
v.  Cooler,  30  Neb.  552,  40  N.  W.  Rep. 
715;  Whiteside  v.  Adams,  26  Ind.  250; 
Murphy  v.  Tilly,  11  Ind.  511;  Kennedy 
v.  State,  37  Ind. 355;  Whaley  v.  Gleason, 
40  Ind.  405;  Kellenberger  v.  Perrin,  46 
Ind.  2S2;  Bingham  v.  Stumph,  4S  Ind. 
97;  Round  v.  State,  14  Ind.  493;  Tay- 
lor v.  Fletcher,  15  Ind.  So,  Bell  v. 
Rinker,  29  Ind.  267;  Blizzard  v.  Phe- 
bus,  35  Ind.  2S4;  Turnbull  v.  Ellis,  35 
Ind.  422;  Cleland  v.  Walbridge,  7S  Cal. 
35S,  20  Pac.  Rep.  730;  Olds  Wagon  Co. 
7.  Benedict,  25  Neb.  372,41  N.W.  Rep. 
254.  Depositions  and  motions.  Rob- 
erts v.  Parrish,  17  Ore.  5S3,  22  Pac.  Rep. 
136;  Mills  v.  Simmonds,  10  Ind.  464; 
Trout  V..  Small,  10  Ind. 3S0;  Harvey  V. 
Sinker,  35  Ind.  341;  Smith  v.  Kylcr.  74 
Ind.  575;  Mendenhall  v.  Treadway,  44 
Ind.  131;  Gardner  v.  Haynie,  42  111. 
291;  Pittsburgh,  etc.,  Co.  v.  Probst,  30 
Ohio  St.  104;  Davidson  v.  Peck,  4  Mo. 
438.  Rules  of  the  trial  court.  Packet 
Co.  v.  Sickles,  19  Wall.  On;  Rout  v. 
Ninde,  11 1  Ind.  597.  Agreed  statement 
of  facts.  Acheson  v.  Sutliff,  iS  Ohio, 
122;  Citizens,  etc.,  Co.  v.  Harris,  10S 
Ind.  392.  Motions  to  transfer  causes 
from  one  court  to  another.    Merchants, 

49 


etc.,  Co.  "■.  Joesting,  89  111.  152;  Cairo, 
etc.,Co.  v.  Easterly,  89  111.  156.  Grounds 

of  objection  that  a  cause  was  called 
for  trial  out  of  its  order.  Lomax  v. 
Mitchell,  93  111.  579.  Vacating  an  order 
granting  a  new  trial.  Davis  v.  Binford, 
58  Ind.  457.  Motion  to  compel  an  at- 
torney to  show  authority  tor  entering 
an  appearance.  Murphy  v.  Tilly,  11 
Ind.  511.  Motion  to  strike  from  the 
docket.  Carr  v.  Thomas,  34  Ind.  292. 
A  summons  and  the  return  in  a  case 
where  all  the  parties  appear. 

Instructions  may  be  made  part  of  the 
record  by  a  bill  of  exceptions,  but,  as 
we  have  elsewhere  shown,  that  is  not 
the  only  mode  of  bringing  them  into 
the  record.  Landers  v.  Beck,  92  Ind. 
49,52;  Plank  v.  Jackson,  128  Ind.  424. 
430.  It  is  probably  true  that  some  ot 
the  instruments  above  enumerated  may 
be  made  part  of  the  record  by  a  special 
order  of  court,  but  as  it  is  difficult  to 
determine  the  scope  and  effect  of  the 
statutory  provision  concerning  such 
special  orders,  the  safe  course  is  to  em- 
ploy the  bill  of  exceptions. 

2  Clay    v.    Clark    76   Ind.  161; 
ton  v.  Kennard,  74  Ind.   302;  Stal 
President,  etc.,  44    Ind.  350;   Ktssler  v. 
Myers,  41  Ind.  543;  Harman  v.  State, 
21  Ind.  331;   Burdick   v.  Hunt,  43  Ind. 
3S1;  Aurora,  etc.,  Co.    v.  Johnson.  46 
Ind.  315.  Sidener  y. Davis, 69  [nd. 
Goodwine  :•. Crane. 41  Ind.  335;  Endsley 

State,  76  Ind.  467,  469;  Sandei 
Ferrell,  83  Ind.  2^;  Cosgrove  v.  ( 
bj  .  s''  Ind.  511. 


70 


ERROR   IN    U'DIL'IAL   PROCEEDINGS. 


be  strictly  followed.  The  instrument  must  be  so  clearly  identi- 
fied that  nothing  remains  for  the  clerk  to  do  but  copy  it  into 
the  bill  at  the  place  indicated.1  The  place  for  the  insertion  of 
the  instrument  should  be  indicated  by  the  words  "  here  insert." 
Instruments  can  not  be  brought  into  the  bill  by  referring  to 
them  as  exhibits,2  nor,  indeed,  in  any  other  mode  than  by  des- 
ignating the  place  for  their  insertion  and  their  insertion  in  the 
place  designated,  or  by  copying  them  into  the  bill  before  it  is 
signed,  except  as  indicated  in  the  next  paragraph. 

§  819.  Instruments  once  properly  in  the  Record  need  not  be 
Copied  in  the  Bill — An  exception  to  the  general  rule  stated  in 
the  preceding  paragraph  is  this :  Where  an  instrument  is  once 
rightfully  in  the  record  proper,  it  need  not  be  copied  into  the 
bill  of  exceptions,  but  may  be  referred  to  at  the  appropriate 
place  without  copying.3  But  it  is  to  be  remembered  that  an 
instrument    not    part  of  the  record    proper   can    not   be  thus 


1  Seymour,  etc.,    Co.  v.    Brodhecker 

(Ind.),  30  N.  E.  Rep. ,  Feb.  26,  1892; 

Wagar  v.  Peak,  22  Mich.  368;  Hum- 
phrey v.  Ball,  4  Greene  (Iowa),  204; 
Sands  v.  Woods,  1  Iowa,  263;  Bryan  v. 
State,  4  Iowa,  349;  Smith  v.  Taylor,  11 
Iowa,  214.  In  Harmon  v.  Chandler,  3 
Iowa,  150,  152,  the  court  said:  "  In  or- 
der to  bring  before  this  court  as  a  part 
of  the  record  any  paper  used  or  pro- 
ceeding had  in  the  district  court  not 
made  part  of  the  record,  it  must  be  em- 
bodied in  the  bill  of  exceptions,  or  so 
plainly  identified  that  there  can  not 
possiblv  be  any  mistake  as  to  what  is 
referred  to.  To  refer  to  a  motion  or 
instruction  "  as  marked  and  here  insert 
it,  is  not  sufficiently  certain  for  the  ends 
of  justice,  and  this  court  has  heretofore 
expressed  its  decided  condemnation  of 
such  a  practice."  Reed  v.  Hubbard,  1 
(1.  Greene,  153;  Atchison,  etc.,  Co.  v. 
Wagner.  19  Kan.  335:  Leftwich  V. 
Leftwich,  4  Wall.  187;  Hill  v.  Hollo- 
way,  52  Iowa,  678;   Wells  v.  Burlington, 


etc.,  Co.,  56  Iowa,  520;  Looney  v.  Bush, 
Minor  (Ala.),  413;  Tuskaloosa  Co.  v. 
Logan,  50  Ala.  503;  Lesser  v.  Banks,  46 
Ark.  482.  See,  generally,  Morrison  v. 
Lehew,  17  Mo.  App.  633;  St.  Louis 
etc.,  Co.  v.  Godly,  45  Ark.  4S5;  Ober  v. 
Indianapolis,  etc.,  Co.,  13  Mo.  App.  Si. 

2  Irwin  v.  Smith,  72  Ind.  4S2;  Burdick 
v.  Hunt,  43  Ind.  3S1;  Cincinnati,  etc., 
Co.  v.  Clifford,  113  Ind.  460;  Baltimore, 
etc.,  Co.  v.  Barnum,  79  Ind.  391;  Hur- 
sen  v.  Lehman,  35  111.  App.  4S9;  Chi- 
cago, etc.,  Co.  v.  Harper,  12S  111.  3S4; 
Sidener  v.  Davis,  69  Ind.  336;  Branch 
Bank,  etc.,  v.  Moseley,  19  Ala.  222. 

3  Kessler  v.  Myers,  41  Ind.  543;  Smith 
v.  Lisher,  23  Ind.  500;  Stewart  v.  Ran- 
kin, 39  Ind.  161;  McFadden  v.  Wilson, 
96  Ind.  253,  255;  Colee  v.  State,  75  Ind. 
511,  513;  Henry  v.  Thomas,  11S  Ind. 
25,  20  N.  E.  Rep.  519.  The  proper  ref- 
erence must  be  made.  Sanders  v.  Far- 
rell,  83  Ind.  2S;  Blizzard  v.  Riley,  S3 
Ind.  300. 


BILLS  OF  EXCEPTII  >NS.  771 

brought  into  the  bill  of  exceptions.1  As  an  example  of  an  in- 
strument not  part  of  the  record  proper  we  may  take  an  affidavit 
attached  to  a  motion  for  a  new  trial,  and  as  an  example  of 
what  is  part  of  the  record  proper  we  may  take  a  promissory 
note  upon  which  a  complaint  is  founded  and  which  is  filed  as  a 
part  of  the  pleading.  An  instrument  not  part  of  the  record  can 
not  be  brought  into  the  bill  by  any  reference  or  recital  of  the 
clerk.2 

§  820.  0rtll  Evidence — Oral  evidence  must  be  embodied  in 
the  bill  of  exceptions  before  it  is  signed  by  the  judge.  It  can 
not  be  brought  into  the  record,  in  an  ordinary  case,  in  any 
other  mode.  It  can  not  be  stated  in  exhibits  nor  by  way  of 
reference.3 

§  821.  Stenographer's  Report  of  the  Evidence — The  principle 
that  the  settling  of  a  bill  of  exceptions  is  a  judicial  duty  forbids 
the  conclusion  that  the  stenographer's  report  of  the  evidence  can 
become  a  part  of  the  bill  in  any  other  mode  than  by  incorporation. 
The  long-hand  report  need  not  be  copied  by  the  clerk,  but  it 
must  get  into  the  bill  by  the  act  of  the  judge  and  it  can  not  get 
there  in  any  other  way.4  It  must  appear  in  a  bill  signed  by 
the  judge.5     Where  the  long-hand  report  is  incorporated  in  the 

1  Douglass  r.  State,  72  Ind.  3S5;  Colee  *  Stone  v.  Brown.  116  Ind.  7S;    Colt 

v.  State,  75  Ind.  511;  Carver  v.  Carver,  v.  McConnell,  116  Ind.  249;    Dick  v. 

44    Ind.   265;  Kimball    v.    Loomis,    62  Mullins,  12S   Ind.  365;    Clark  v.  S 

Ind.  201;  Aurora,  etc.,  Co.  v.  Johnson,  125  Ind.  1;    Fiscus  v.  Turner,  125   Ind. 

46    Ind.    315;   Board  v.   Karp,  90   Ind.  46;     Ohio,  etc.,  Co.  v.  Voight,  122  Ind. 

236;  Crumley  v.  Hickman,  92  Ind.  388.  2SS;    Doyal  v.  Landes,  119   Ind.  479; 

i  Garber    v.   Morrison,   5  Iowa,  476;  Patterson  v.  Churchman,  122  Ind. 

Jordan  v.  Quick,   11   Iowa,  9;   State  v.  Stevens  v.  Stevens,  127  Ind.  560;  But- 

Jones,  11  Iowa,  11;   H addon  v.  lladdon,  ler  v.  Roberts,  11S  Ind.  481;    Fahlor  v. 

42  Ind.  37S;   Aurora,  etc.,  Co.  v.  John-  State,  10S  Ind.  387;   Brehm  :  .  State,  90 

son,  46  Ind.  315.  Ind.  140;  Weir  Plow  Co.  v.  Walmsley, 

3  Harrell  v.  Seal,  121  Ind.  193;  Strat-  no  Ind.   242;     Marshall    v.   State.    107 

ton  v.  Kennard,  74  Ind.  302;  Kesler  v.  Ind.  173;  Woollen  v.  Wishmier,  70  End. 

Myers,  41  Ind.  543;  Stewart  v.  Rankin,  10S;  Lowery  :•.  Carver,  104  Ind.  417; 

39  Ind.  161;  Cincinnati,  etc.,  Co.  f.Cal-  Flint  V.  Burnell,  Il6  Ind.  4S1. 

vert,   13  Ind.  4S9;   Irwin  :\    Smith,   72  5  Louisville,    etc.,    Co.    V.  Kane,    120 

Ind.  482,  488,  and  cases  cited;   State  :■.  Ind.  140. 
Hemrick,  62  la.  414;  Shugart  v.  Miles, 
125  Ind.  445. 


"7" 


ERROR    IN  JUDICIAL  PROCEEDINGS. 


hill  of  exceptions  signed  by  the  judge  it  is  properly  in  the  rec- 
ord. The  fact  that  the  evidence  was  taken  down  and  certified 
by  the  stenographer  does  not  affect  the  question,  for  if  the 
judge  incorporates  the  evidence  in  a  bill  he  adopts  the  report 
and  thereby  makes  its  statements  and  recitals  his  own.1 


;  822.   Making  the  Stenographer's  Report  part  of  the  Bill— The 

mode  of  making  the  stenographer's  long-hand  report  a  part  of 
the  bill  of  exceptions  is  by  incorporating  it  in  the  form  of  a 
bill  and  procuring  the  signature  of  the  judge.  Counsel  can 
readily  do  this  by  preparing  the  formal  caption  and  introduc- 
tory recital  of  a  bill,  prefixing  it  to  the  report  and  writing  at 
the  end  of* the  report  the  clause  necessary  to  show  that  all  the 
evidence  is  set  forth  and,  also,  the  appropriate  conclusion. 
When  this  is  done  and  the  judge  affixes  his  signature  the  bill  is 
complete  and  effective.2  It  has  been  held  that  when  the  long- 
hand manuscript  is  incorporated  into  a  bill  of  exceptions  it 
need  not  be  copied  by  the  clerk  but  the  original  may  be  taken 
from  the  hill  and  certified  up.3     We  can  see  no  reason  why  the 


1  MrCormick,  etc.,  Co.  v.  Gray,  114 
Ind.  340,  modifying  Lyon  v.  Davis,  111 
Ind.  384;  L'llommedieu,  etc.,  Co.  v. 
Cincinnati,  etc.,  Co.,  120  Ind.  435,  436. 

2  In  Wagoner  v.  Wilson,  10S  Ind. 
2  ki.  215.  it  was  said:  "  All  that  is  nec- 
essary  in  order  to  prepare  a  bill  of  ex- 
ceptions •  which  shall  incorporate  the 
Ion-  hand  manuscript  is  to  prepare  the 
usual  formula  for  the  beginning  of  an 
ordinary  bill  of  exceptions  with  a  recital 
thai  the  following  oral  evidence  was 
delivered,  and  the  rulings  of  the  court 
with  respect  to  the  admission  and  re- 
jection of  evidence,  and  the  objections 
thereto,  were  made  and  taken  as  noted, 
and  thai  a  verbatim  report  of  such  evi- 

-,  and  the  rulings,  objections  and 
ptions  thereon  and  thereto  was 
made  by  an  official  reporter, naming  him, 
of  which  rulings,  objections  and  excep- 
tions so  made  and  taken,  the  following 
i  mi-  original  long-hand  manuscript  as 
the  same   was   made  and  filed.      Some- 


thing  similar  to  the  foregoing,  attached 
as  a  preface  to  the  long-hand  manu- 
script, with  the  usual  formal  ending  of 
a  hill  of  exceptions,  not  omitting  at  the 
appropriate  place  the  usual  statement 
that  'this  was  all  the  evidence  given  in 
said  cause,'  incorporates  the  manuscript 
into  a  bill  ready  for  presentation  to  the 
judge  for  examination  and  signature." 
3  In  Hull  v.  Louth,  109  Ind.  315,  3S7, 
the  court  said:  "  But,  in  our  judgment, 
if  the  long-hand  manuscript  is  filed 
with,  and  as  part  of  the  bill  of  excep- 
tions, that  is  sufficient,  and  when  thus 
filed  it  may  be  taken  from  the  bill  of 
exceptions  and  be  made  part  of  the  rec- 
ord on  appeal  to  this  court  without  be- 
ing copied."  As  indicated  in  the  text 
we  can  see  neither  propriety  nor  utility 
in  severing  the  report  from  the  state- 
ments and  recitals  that  give  it  effect, 
ami  we  think  that  the  better  practice  is 
to  certify  up  the  original  bill  as  an  en- 
tirety. 


BILLS  OF  EX(  I  P  riONS.  77;; 

original  bill  may  not  be  certified  up  without  extracting  from  it 
the  long-hand  manuscript.  There  is  certainly  no  necessity  for 
detaching  the  manuscript  from  the  other  parts  of  the  bill  and 
no  good  is  accomplished  by  doing  so.1  We  are,  of  course, 
speaking  only  of  bills  containing  the  evidence,  for  the  doctrine 
declared  by  the  decided  cases  does  not  extend  to  bills  bringing 
motions  made  during  the  formation  of  issues,  or  the  like,  into 
the  record.  When  the  report  of  the  stenographer  is  proprrly 
incorporated  in  the  bill  of  exceptions  its  statements  of  objec- 
tions, exceptions  and  rulings  on  the  admission  and  exclusion 
of  evidence  are  part  of  the  record. 

§  823.   The  Rule  where  all  the  Evidence  must  be  in  the  Record — 

In  many  cases  the  errors  sought  to  be  made  available  can  not  be 
regarded  unless  the  whole  evidence  is  in  the  record  by  a  bill  of 
exceptions.2  We  are  not  speaking  of  special  cases  as  "  reserved 
questions  of  law,"  or  the  like,  but  of  cases  appealed  in  the  or- 
dinary mode.  We  do  not  say  that  the  entire  evidence  is  al- 
ways necessary  even  in  cases  appealed  in  the  usual  mode,  for 
there  are  cases  where  it  is  not  necessary  that  the  entire  evi- 
dence should  be  brought  in  by  a  bill  of  exceptions,3  but  we  do 
say  that  where  the  whole  evidence  is  required,  as  it  is  in  most 
cases,  it  must  be  brought  into  the  record.  Where  the  entire 
evidence  must  be  in  the  record  there  must  be  a  clear  affirmative 

1  Since  the  text   was  written   it   has  trode,  87  Ind.  379;  Conden .1;.  Morning- 
been  expressly  decided  that  the  original  star.  <(_j  Ind.  150;    Hedrick  V.  P.  M    I  '- 
bill  containing   the   report   of  the  evi-  borne   .V    Co.,   1)9  Ind.    143;    Pedigo   1 
dence  may  be  certified  up  without  copy-  Grimes,  113  Ind.   [48;   Instate  of  Wells 
ing.     McCoy   v.  Able  (Ind.),  30  N.  E.  v.  Wells,  71    Ind.   509;   Douns  v.  Opp, 

Rep. .     The   case    referred   to   fully  82    Ind.    166.     It    is    true,    as  a  general 

considers  the  subject  of  making  the  re-  rule,  that  questions  arising  on  amotion 

porter's  notes  part  ot"  the  record  for  a  new  trial    require   that  all  the  evi- 

2  Fellenzer  v.  Van  Valzah,  95  Ind.  dence  should  he  brought  into  the  rec- 
128;  Ohio,  etc.,  Co  v.  Nickless,  73  Ind.  ord.  School  Town  of  Princeton  v. 
3S2;  Miller  v.  Voss,  |.o  Ind.  307;  Lur-  Gebhart,  6i  Ind.  187;  Smith  v  £ 
ton  v.  Carson,  2  Blackf.  (.64;  Bates  v.  ford,  62  Ind.  $92;  Walser  0.  Kerrigan, 
Bulkley,  7  111.  3S9;  Hall  v.  Reed.  17  56  Ind.  301.  But  the  rule,  although  not 
Ohio.  49S.  subject    to    very    many    exceptions,    i^. 

s  Wiley  v.  lohnson,  ~\  Ind.  ;  53;  Suth-     nevertheless,  subject  to  some  important 
erland  v.   Hankins,   56  Ind    543;  Shorf    ones. 
:•.  Kinzie.  So  Ind.  500;   Pavey   v.  Win- 


771  ERROR   [N  JUDICIAL  PROCEEDINGS. 

showing  of  that  fact.  The  usual  formula  in  this  jurisdiction  is: 
••And  this  was  all  the  evidence  given  in  the  cause,1'  but  it  has 
been  held  that  words  of  equivalent  meaning  are  sufficient,1  al- 
though it  has  also  been  held  that  it  is  not  sufficient  to  use  tin- 
term  "  offered  "2  in  place  of  the  term  "given,"  or  the  word 
"  testimony  "3  in  place  of  the  word  "  evidence."  It  has  been 
said,  we  may  incidentally  remark,  that  the  adherence  to  a  rigid 
rule  is  unwise  because  too  technical,  but  this  is  only  a  partial 
view  of  the  question.  One  great  virtue  of  a  rule  is  to  secure 
certainty  and  to  prevent  a  consumption  of  the  time  of  the  court 
in  determining  whether  the  evidence  is  or  is  not  in  the  record. 
It  is  no  great  hardship  to  require  parties  to  obey  a  settled  rule, 
but  there  is  hardship  and  uncertainty  in  a  practice  that  leaves 
each  case  to  be  determined  as  a  single  and  isolated  instance. 

§  824.  The  General  Recital  not  always  Controlling — The  gen- 
eral statement  that  "  this  was  all  the  evidence  Jjiven  in  the 
cause,"  effective  as  it  is,  does  not  always  control.  If  the  bill 
shows  that  it  does  not  contain  all  the  evidence,  the  recital 
will     be    unavailing.4       But    it    is    effective    and    controlling 

1  Bcattv    v.   O'Conner,    106   Ind.  Si;  conflict    in    our   decisions.     The   word 

Brock  v.  State,  85  Ind.  397.  "  introduced  "  has  been  held  equivalent 

'  Goodwine  v.  Crane,  41  Ind.  335;  to  the  word  "given."  Jones  v.  Lay- 
Peck  t.  Louisville,  etc.,  Co.,  101  Ind.  man,  123  Ind.  569,  24  N.  E.  Rep.  3(13; 
366;  American  Ins.  Co.  v.  Gallahan,  75  Kennedy  v.  Divine,  77  Ind.  490;  Stair 
Ind.  168;  Woollen  v.  Wishmier,  70  Ind.  t>.  Richardson,  10S  Ind.  429;  Brock  v. 
108;   Lyon  v-  Davis,  m  Ind.  3S4.  State,  85  Ind.  397. 

3  Central  Union,  etc.,  Co.  v.  State,  4  Oberfelder  v.  Kavanaugh,  29  Neb. 
no  Ind.  203,  207;  Gazette,  etc.,  Co.  v.  427, 45  N.W.  Rep.  471;  Missouri  Pacific 
Morss,  60  Ind.  153;  McDonald  v.  Klfes,  Ry.  Co.  v.  Hays,  15  Neb.  224,  18  N.  W. 
61  Ind.  279;  Sassengut  v.  Posey,  67  Ind.  Rep.  51;  Taylor  v.  Davis  (Tex.),  13  S. 
40S;  Brickley  v.  Weghorn,  71  Ind.  497;  W.  Rep.  642;  Jennings  v.  Durham,  101 
Kleyla  v.  State,  112  Ind.  146;  Long-  Ind.  391;  Stout  -•.  Turner,  102  Ind. 
worth  v.  Higham,  89  Ind.  352;  Ingel  v.  418;  Louisville,  etc.,  Co.  v.  Grantham, 
Scott,  86  Ind.  518;  Baltimore,  etc.,  Co.  104  Ind.  353;  Reineke  v.  Wurgler,  77 
v.  Barnum,  79  Ind.  261;  Garrison  v.  Ind.  468;  Collins  v.  Collins,  100  Ind. 
.  no  Ind.  145;  Bender  v.  Wamp-  266;  Fasnachl  v.  German,  etc.,  Asso- 
ler.  84  Ind.  172;  Barley  v.  Dunn,  85  ciation,  99  Ind.  133;  Lee  :\  State,  8S  Ind. 
Ind.  338.  The  older  cases,  which  re-  256;  French  v.  State,  Si  Ind.  151 ;  Pavey 
quired  a  rigid  adherence  to  the  accept-  v.  Wintrode,  87  Ind.  379;  Eigenman  v. 
1  inula,  were  based  upon  a  rule  of  Rockport,  etc.,  Association,  79  Ind.  41; 
court  which  is  not  now  in  force.  This  Huston  :•.  MeCloskey,  76  Ind.  38;  Shi- 
will  in    part  account   for   the  apparent  mer  -•.  Butler   University,  87  Ind.  21S; 


BILL  i  I  >F   EXCEPTIONS.  775 

unless  the  bill    itself  reveals    the    fact  that  some  evidence   is 
omitted.1 

§  825.  Amendment  of  Bills  of  Exceptions — It  is  quite  well 
tied  that  amendments  and  corrections  maybe  made  in  a  bill  of 
exceptions  by  order  of  the  trial  court,2  but  amendments  and 
corrections  are  allowed  only  in  clear  cases.  It  is  obvious  that 
where  so  much  depends  upon  the  memory  of  the  judge  by 
whom  the  cause  was  tried,  the  courts  should  proceed  with  care 
and  caution.3  Promptness  is  exacted,  and  rightly  exacted,  of 
parties  who  ask  that  a  bill  of  exceptions  be  altered  or  amended. 

§  826.  Application  for  the  Order  to  Amend — The  rule  respect- 
ing the  amendment  or  correction  of  bills  of  exceptions,  so  far 
as  concerns  matters  of  procedure,  is  much  the  same  as  that 
which  prevails  in  other  cases  where  the  amendment  or  correc- 
tion of  a  record  is  sought,  but,  as  said  in  the  preceding  para- 
graph, the  courts  are  rather  more  cautious  and  careful  in  or- 
dering amendments  of  bills  of  exceptions  than  they  are  in  or- 
dering the  correction  of  other  parts  of  the  record.  We  have 
considered  the  general  subject  at  another  place,  and  it  is  un- 
necessary to  again  discuss  it.4  All  that  we  deem  it  necessary 
to  say  here  is  that  notice  of  an  application,  when  made  after 
the  close  of  the  term,  must  be  given,  and  that  while  parol  evi- 
dence is  admissible  to  aid  in  determining  whether  an  amend- 
ment is  proper,  an  amendment  can  not,  as  a  general  rule,  be 
made  upon  parol  evidence  alone.5 

Hockettt/.Johnson,87lnd.  251;  Ward  v.  ins  v.  Bradley,  3  Bibb.  (Kv.),  192;  Mar- 

Bateman, 34lnd.  no;  Morrow  v.  State,  ley  v.  Hornaday,  69  Ind.  106;  Hannah 

48  Ind.  432;  Powers  v.  Evans,  7:  Ind.  v.  Dorrell, 73I1KI.465;  Morgans. Hays, 

23;  Thames, etc.,  Co.  t'.Beville,  100  Ind  91  Ind.  132. 

309;  Lyon  v.  Davis,  m  Ind.  384;  State        3  Roblin  v.  Yaggy,  35  111.  App.  537. 
v.  Marsh,iig  Ind.  394;  Lawrenceburgh,        *  Ante,   §§  212,    213.  214,    219.     See, 

etc.,  Co.  7'.  Hinkle,  119  Ind.  47:  Saxson  also,   Harris    v.  Tomlinson,  supra,  and 

v.  State,  116  Ind.  6.  authorities  cited;   St.  Louis,  etc.,  Co.  r . 

1  Vermillion  v.  Nelson,  87  Ind.  194.  Godby,  45  Ark.  485,491;  Seii;  v.  Long, 

2  Ante,  §  209,  p.  17S.  note  2.      Harris  72  Ind.  iS;   Hamilton  v.  Burch,  28  Ind. 
v.  Tomlinson  (Ind.),  30  N.  E.  Rep. — ;  233. 

Lefferts  v.  State,  49  N.J.  L.  26;  6  A 1 1 .  5  Where  the  application  is  madedur- 

Rep.  521 ;  Martin  v.  St.  Louis,  etc.,  Co.,  ing  the  term  the  rule  is  somewhat  differ- 

53  Ark.  250,  13  S.W.  Rep.  765;  People  ent.      See,    Longworth  v.  Higham,   89 

z>.  Teague,  106  N.  C.  571;  Runnells  v.  End.  352;  Beavers  v.  State,  58  Ind 

Moffat,  73  Mich.  188;   Morse  v.  Wood-  Jeffersonville,   etc.,  Co.    v.   Bowen,  49 

worth  (Mass.),  27  N.E.  Rep.  1010;  Giv-  Ind.  154. 


CHAPTER  XIV. 


PRESENTING    AN    OPPORTUNITY    FOR    REVIEW. 


$  827. 

The  theoretical  doctrine. 

§  S45 

S2S. 

The  practical  doctrine. 

S29. 

The  mode  of  presenting  ques- 
tions for  review. 

S46 

S30. 

The  office  of  a  motion  for  a  new 
trial. 

831. 

The  office  of  the  motion  on  ap- 
peal. 

847 

832. 

The  motion  can  not  precede  the 

decision. 

S4S 

833- 

The  motion  not  cut  off  by  entry 

of  judgment. 

S49. 

834- 

Motion    in    arrest  of  judgment 

cuts  off  a  motion   for  a   new 

Sqo. 

trial. 

851. 

S35. 

All  causes  must  be  embraced  in 

one  motion. 

S:;2 

836. 

Successive  motions. 

853 

837- 

Exceptions  to  the  rule  forbidding 

successive  motions. 

854- 

838. 

Different  classes  of  motions. 

839- 

Joint  motions. 

840. 

Requisites  of  the  motion — Gen- 
erally. 

855- 

841. 

Time  of  filing. 

856. 

S42. 

Where  filed. 

S43- 

The  motion  ordinarily  goes  to 

the  whole  case. 

857. 

S44. 

Exceptions  to  the  general  rule. 

858. 

The  motion  should  be  complete 

in  itself. 

Rulings  on  the  pleadings  and 
objections  to  the  form  of  the 
judgment  not  assignable  as 
causes  for  a  new  trial. 

Inconsistency  bet  ween  the  an- 
swers of  the  jury  to  interroga- 
tories and  the  general  verdict. 

Irregularity  in  the  proceedings 
of  the  court. 

Irregularity  of  the  jury  or  pre- 
vailing party. 

Abuse  of  discretion. 

Misconduct  of  the  jury  or  pre- 
vailing party. 

Accident  or  surprise. 

Errors  of  law  occurring  on  the 
trial. 

Verdict  or  finding  contrary  to 
law  or  not  sustained  by  suffi- 
cient evidence. 

D  a  m  a  ge  s  —  Questioning  the 
amount  of  recovery. 

Damages  in  actions  in  tort  and 
damages  in  actions  on  con- 
tract. 

Newly  discovered  evidence. 

Counter- affidavits. 

Verification  of  the  motion. 


§  827.  The  Theoretical  Doctrine — In  theory  all  rulings  must  be 
presented  to  the  trial  court  for  review  or  they  will  not  be  avail- 
able as  error  on  appeal,  although  wrong.  This  doctrine  is 
hardly  correct  in  fact.  A  ruling  on  demurrer,  or  the  like,  is 
not,  in  fact,  ever  brought  before  the  trial  court  for  review. 
The  earlier  cases  asserted  that  an  exception  gave  the  court  an 

(776) 


OPPORTUNITY   FOR    REVIEW.  777 

opportunity  for  review,1  but  this  is  rather  a  fancied  office  of  an 
exception  than  an  actual  one.  The  exception  follows  the  rul- 
ing so  quickly  that  it  is  not  easy  to  conceive  how  it  can  afford 
an  opportunity  to  the  court  of  original  jurisdiction  for  review- 
ing the  ruling. 

§  828.  The  Practical  Doctrine — The  practical  doctrine  is  that 
rulings  connected  with  the  trial  or  made  during  its  progress 
must  b^  brought  before  the  trial  court  for  review.2  The  rule  is 
settled  and  is  easily  understood.  The  difficulty  is  in  deter- 
mining what  rulings  are  so  connected  with,  or  related  to,  the 
trial  as  to  make  it  necessary  to  bring  them  before  the  court  for 
review. 

§  829.  The  Mode  of  Presenting  Questions  for  Review — We  re- 
gard it  ?s  the  office  of  an  exception  to  give  notice  that  a  party 
intends  to  stand  bv  his  objection  and  make  it  available,3  and  as 
this  is  its  office,  or,  at  all  events,  its  chief  purpose,  it  must  pre- 
cede the  motion  which  brings  up  the  ruling  in  order  to  have  it 
reviewed.  The  motion  which  presents  the  rulings  for  review 
is  ineffective,  unless  proper  exceptions  have  been  reserved.  The 

1  In  Stump  v,  Frarley,  7  Ind.  679,  it  675,  S.  C.  74  Am.  Dec.  233.  and  note; 
was  said:  "One  important  office  of  an  Lichty  V.  Clark.  10  Neb.  472.  The 
exception  is  to  direct  the  attention  of  failure  to  make  the  proper  motion  for 
the  court  particularly  to  the  objection  a  new  trial  is  a  waiver  of  exceptions. 
and  the  grounds  of  it,  so  that  if  errone-  In  Nave  v.  Nave,  12  Ind.  1,  it  was  said: 
ous  it  maybe  reexamined  and  cor-  wAnd  it  would  seem  to  have  been  the 
reeled."  Leyner  v.  State,  S  Ind.  490;  intent  of  the  legislature  in  enacting  the 
Jolly  v.  Terre  Haute,  etc.,  Co.,  9  Ind.  new  code,  that  points  of  law  raised  dur- 
417.  ing  the  trial  should  In-  treated  a-  waived 

2  Danks  v.  Rodeheaver,  26  W.  Va.  unless  they  were  again  brought  under 
274;  State  v.  Phares,  24  W.  Va.  657;  review  before  the  court  below,  upon  a 
Johnson  v.  State,  43  Ark.  391 ;    Garver  specification   in   writing,  on   a   mo 

v.  Daubenspeck,  22  Ind.  238;   Lures  v.  for   a    new    trial."     It    was   also   said: 

Botte,  26  Ind.  343;    Taylor  v.  Shelkett,  "The   rule  would   be  a   reasonable  one. 

66  Ind.  297;   Hyatt  v.  Clements,  65  Ind.  that  the  court    below  should   have  an 

12;    Starner  v.  State,  6 1  Ind.  360;  Chap-  opportunity  after  the  hurry  of  trial  was 

lin  v.  Sullivan,  128  Ind.  50;    Louisville,  over,  to  hear  full  argument  and  consult 

etc.,  Co.  v.  Hart,  119  Ind.  273;     Mar-  with  authorities  upon  points  ruled  dur- 

shall  v.  Lewark,  1 17  Ind.  377;  Racer  v.  ing  its  progress,  and  to  correct  am  error 

Baker.  1 1  5  Ind.  177:  Rousseau  v.  Corey,  it  might  conclude  it  had  committed." 
62  Ind.  250;     Kent   v.  l..iw~in.  12    Ind.         3  Ante, 


778  ERROR  IN  JUDICIAL  PROCEEDINGS. 

ruling  on  the  motion  requires  an  exception,1  so  that  where  there 
is  a  reviewing  motion  there  is  a  double  exception.  The  motion 
for  a  new  trial  is  the  one  which  in  the  great  majority  of  cases 
presents  the  opportunity  for  review,  and  it  is  of  that  motion 
that  we  shall  speak. 

§  830.  The  Office  of  a  Motion  for  a  New  Trial — It  is  said  in  some 
of  the  cases  that  the  objections  made  during  the  progress  of  a 
trial  must  be  repeated  in  the  motion  for  a  new  trial,  but  this  we 
think  is  hardly  accurate,  insomuch  as  objections  once  well  and 
seasonably  stated  need  not  be  repeated.  But  while  it  is  not,  as 
we  believe,  the  office  of  a  motion  for  a  new  trial  to  repeat  ob- 
jections, it  is  its  office  to  bring  before  the  court  of  original 
jurisdiction  its  rulings  in  order  that  it  may  review  them,  and, 
if  need  be,  correct  errors  into  which  it  may  have  fallen.  If  it 
should  be  held  to  be  the  office  of  a  motion  for  a  new  trial  to  re- 
peat objections,  then  it  would  necessarily  result  that  objections 
must  be  restated,  not  simply  referred  to  and  specified,  but  we 
are  not  aware  of  any  case  in  which  such  strictness  in  the  specifi- 
cations of  the  motion  is  required.  The  motion  is,  we  think,  the 
vehicle  by  which  rulings  concerning  the  trial  or  rulings  forming 
part  of  the  trial  procedure  are  conveyed  to  the  attention  of  the 
court  after  a  finding  or  verdict.  While  it  is  true,  as  a  general 
rule,  that  the  office  of  a  motion  for  a  new  trial  is  to  present  rul- 
ings for  review,  it  is,  nevertheless,  true  that  it  does  present  for 
original  consideration  by  the  court  the  correctness  of  the  find- 
ing of  the  jury  upon  the  issues  of  fact  in  a  case  where  the  as- 
sault is  upon  the  verdict  for  the  reason  that  it  is  contrary  to 
the  evidence  or  is  not  supported  by  the  evidence.  It  is  also 
true  that  in  some  other  instances  it  presents  an  original  question 
as.  for  instance,  the  misconduct  of  jurors,  but  its  principal 
function  is  to  bring  forward  rulings  for  review. 

§  831.  The  Office  of  the  Motion  on  Appeal — The  principal  office 
of  the  motion  on  appeal  is  to  present  for  the  consideration  of 
the  appellate  tribunal  the  same  questions  presented  to  the  court 
of  original  jurisdiction,  and  in  order  to  do  this  it  must  specify 

•     l  Ante,  §  794. 


OPPORT1   M  l  \    FOR    REVIEW.  77!) 

with  reasonable  certainty  the  rulings  which  the  party  seek 
to  make  available  for  the  reversal  of  the  judgment.  The  mo- 
tion is  the  basis  of  the  specification  in  the  assignmenl  <>f  errors 
relating  to  trial  procedure,  and,  as  we  have  seen,1  no  ruling 
that  is  properly  embraced  in  the  motion  for  a  new  trial  can  be 
independently  specified  as  error.  The  proper  specification  of 
error  is  the  ruling  on  the  motion  itself  and  not  the  causes  or 
reasons  properly  forming-  part  of  the  motion,  so  that  it  is  ne< 
sary  that  all  rulings  connected  with  the  trial  should  be  specified 
in  the  motion.2 

§  832.  The  Motion  can  not  Precede  the  Decision — Until  there  is 
an  authoritative  decision  or  finding,  the  motion  can  not  be 
properly  filed.  Thus,  in  a  case  where  the  court  in  a  suit  in 
equity  submits  particular  questions  of  fact  to  a  jury,  the  motion 
filed  before  the  court  acts  upon  the  answers  or  verdict  of  the 
jury  will  be  ineffective.3  A  verdict,  or  a  finding,  in  an  action 
at  law  may  be  followed  by  a  motion  for  a  new  trial,  and  so 
may  the  finding  of  the  court  in  a  suit  in  equity,  for  it  is  proper 
to  file  the  motion  upon  the  return  of  the  verdict  or  the  announce- 
ment of  the  finding  of  the  court. 

§  833.  Motion  not  Cut  off  by  Entry  of  Judgment — A  motion  for  a 
new  trial  is  not  cut  off  by  the  entry  of  judgment.  It  may  be 
filed  after  the  judgment  is  entered.4  The  entrv  of  judgment  is 
not,  however,  a  final  disposition  of  the  case  in  such  a  sense  as 
to  start  the  time  for  appealing  to  running  from  the  date  of  entrv, 
as  the  time  for  appealing  does  not  begin  to  run  until  the  motion 
is  disposed  of  by  final  action.5 

§  834.  Motion  in  Arrest  of  Judgment  Cuts  off  a  Motion  for  New 
Trial — It  is  a  settled  general  rule  that  a  motion  in  arrest  of  judg- 

1  Ante,  §§  347,  34S.     In  many  casesit  Pence  v.  Garrison, 93  Ind. 345;    Duffv. 

is  adjudged  that    reasons    not   stated  in  Dull'.  71  Cal.  ^i}. 

the  motion  will  not  be   considered  on  *  Cox  v.  Baker,  113  Iml.  62;  Beals  r\ 

appeal.     Kernodle  v.  Gibson,   ii|   Ind.  Beals,  20  Ind.  163;  Hinklev.  Margerum, 

451.  5O    I  lid.    2  \0. 

'-'  Ante,  ss  351.  5  NV«  York,  etc.,  Ry.  Co   v.  Doane, 

3  Ikerd  :■.  Heavers,  106  Ind.   [£3,    (.92;      10;     Ind    92;    Sinclair   r.    Washingl 

etc.,  Co.,  1  MacArthur    D.  C),  13. 


780  ERROR    IN  JUDICIAL  PROCEEDINGS. 

ment  cuts  off  a  motion  for  a  new  trial.1  But  it  is  only  a  motion 
in  arrest  proper  that  has  this  effect.  A  motion  for  judgment 
upon  the  answers  of  the  jury  to  interrogatories  does  not  pre- 
clude a  party  from  moving  for  a  new  trial.2 

§  835.  All  Causes  must  be  Embraced  in  One  Motion— In  strictness 
all  the  reasons  for  a  new  trial  must  be  embodied  in  one  motion.3 
A  party  can  not,  as  a  matter  of  right,  file  separate  motions  con- 
taining different  reasons.  The  court  may,  in  the  exercise  of  a 
reasonable  discretion,  permit  amended  or  supplemental  motions 
to  be  filed,  but  a  party  can  not,  as  of  strict  right,  file  more  than 
one  motion. 

> 

§  836.  Successive  Motions — The  rule  is  that  motions  for  a  new 
trial  can  not  be  repeated,  for  one  motion  must  present  all  the 
rulings  which  the  party  desires  reviewed,  but  the  rule  is  not 
without  exceptions.  A  decision  upon  a  motion  is  ordinarily  a 
conclusive  adjudication.  As  such  a  decision  is  an  adjudication 
of  a  conclusive  character  it  necessarily  results  that  the  party  is, 
as  a  general  rule,  precluded  from  repeating  his  motion.4 

§  837.    Exceptions  to  the  Rule  forbidding  Successive  Motions— It 

is  manifest,  as  already  indicated,  that  there  are  exceptions  to 
the  general  rule  prohibiting  the  filing  of  a  second  or  subsequent 
motion.  A  party  may  not  be  aware  of  the  cause  entitling  him 
to  a  new  trial,  and  if  his  ignorance  is  not  attributable  to  any 

'Cincinnati,    etc..    Co.    v.    Case,  122  sider  the  error  assigned  on  the  overrul- 

Ind.  $10,  -:  ■;  N.  E.   Rep.  797.     There  is  ing  of  the    second    motion    for  a  new 

an  exception  to    the   general    rule,  and  trial.     There  might  be  a  ease  where  a 

thai  is:   where  the  grounds  of  the  mo-  second  motion  for  a  new  trial  would  be 

tion  for  a  new  trial  are  unknown  at  the  proper,  but  this  is  not  such  a  case." 
time  the  motion  in  arrest  is  made.  *  People    v.     Center,    61     Cal.      191; 

1  Indianapolis, etc.,  Co.  v.  McCaffrey,  Thompson    t>.    Lynch,    43    Cal.    482; 

62  End.  552;    r.rannon  p.  IIav.42  Ind.92.  Coombs  v.  Hilberd.43  Cal. 453:  Wright 

3  Moon  O.Jennings,  [19  End.  130.     In  v.  Bovnton,  40  N.  H.  353;  Branger  v. 

the   case   cited    it    was   said:     "Parties  Buttrick,  28  Wis.  450;  Moll  v.  Benckler, 

filing  a  motion  for  a  new  trial  for  errors  28   Wis.   611;   Rodgers   v.   Hoenig,   46 

occurring  on  the  trial  must   include  all  Wis.  361;   Kabe  v.  The  Vessel  Eagle,  25 

the   grounds    in    one  motion;   they  can  Wis.  10S;  Cothren  z>.  Connaughton,  24 

not  separate  them  ami  file  a  motion  for  Wis.  134;   Cross  v.  State,  55  Wis.  261. 
each  cause  assigned,  and  we  do  not  con- 


OPPORTUN]  IV    FOR   REVIEW.  781 

fault  of  his,  he  is  in  fairness  and  justice  entitled  to  lilt-  a  second 
motion,  or  to  amend  one  previously  filed.1     A  party  who  asks 
leave  to  file  a  second  or  subsequent  motion  must  show  that  he 
was  not  guilty  of  negligence  in  not  embodying  all  the  can 
in  one  motion. 

§838.  Different  Classes  of  Motions — It  seems  necessary  in  or- 
der to  avoid  confusion  to  say  that  in  the  last  three  preceding 
paragraphs  we  have  treated  of  the  ordinary  motion  for  a 
trial,  that  is,  the  motion  calling  in  review  errors  in  the  rulings 
of  the  court  made  in  cases  where  the  facts  were  known  to  the 
party,  and  that  we  did  not  refer  to  a  motion  for  a  new  trial  as 
matter  of  right,  nor  to  a  complaint  for  a  new  trial  for  matters 
discovered  after  the  close  of  the  term.  The  classes  of  motions 
are  essentially  different,  and  are  governed,  in  many  respects, 
by  different  rules.  We  have  already  referred  to  a  complaint 
for  a  new  trial,  and  we  need  do  no  more  than  say  of  a  motion 
for  a  new" trial  as  of  right  that  it  is  not  within  the  scope  of  our 
subject.2 

§  839.  Joint  Motions — A  joint  motion  by  two  or  more  parties 
must  be  well  taken  as  to  all  or  there  will  be  no  error  in  over- 
rulino-  it.3  The  doctrine  that  parties  who  unite  in  a  motion 
must  all  have  a  right  to  insist  upon  it  is  nothing  more  than  the 
application  of  a  general  principle  to  particular  instances.     The 


49  Ga.  22 1 ;  Bryorly  v.  Clark.  4S  Texas,  E.  Rep.  899;   Wafer  v.  Hamill,  44  Kan. 

345;    Haves  o.  Kenvon.  7  R.  I.  531.   See  447,  24  Pac.  Rep.  950. 
Andis  v.  Richie.  120  [nd.  13S.  3  Dorsey  v.  Md 

-  As  to  the  general  rules  applicable  to  N.W.  Rep.  1018;   Miller  v.  Adamson,45 

a  new  trial  as  of  right,  see  Anderson  v.  Minn.  99.  47  N.W.  Rep.  452;    Firsl 

Anderson,    128    1ml.    254;    Stafford   v.  Bank  v.  Colter,  6i  End.  153;   Feenej  v. 

Cronkhite,  114  [nd.  220;   Warburton  v.  Mazelin,8;  liui.  226;  Kendel  p.Judah, 

Crouch,  to8  [nd.  83;   Adams  v. Wilson,  631^.291;  Boyd  v.  Anderson,  102  End. 

60  [nd.  560;   Wilson   .-.  Brookshire,  126  217;  Wolfe  v.  Kable,  107  Ind.  565;  Car- 

Ind.  497;    Hawkins  v.  Heinzman,  126  nahan  v.  Chenoweth,  1  [nd.  App 

Ind.  551;   Liggett  v.  Hinkley,  120  [nd.  Carver  v.  Carver,  97  Ind    ;.;.   Robert- 

387;    Gulletl    t.   Miller.    106    [nd.   75;  son  v.  Garshwiler,  81  Ind 
Kreitline  v.  Fran/.   106  Ind.  359;   Will- 


782 


ERROR    IN  JUDICIAL   PROCEEDINGS. 


principle  runs  through  all  procedure,  trial  court  and  appellate. 
It  has  been  held  that  where  there  is  a  joint  verdict  against  sev- 
eral persons  and  a  right  of  recovery  as  to  two  and  no  right  to 
a  recovery  as  to  a  third,  a  motion  for  a  new  trial  should  be  sus- 
tained as  to  all  of  the  defendants.1  Where  the  rights  of  the 
parties  are  several  and  distinct  the  motions  should  be  several, 
and  the  motion  of  one  of  such  parties  may  be  granted  and  that 
of  the  other  denied,  although  both  are  addressed  to  the  same 
decision.2 

g  840.  The  Requisites  of  the  Motion— Generally— The  motion 
for  a  new  trial  is  required  to  be  in  writing  and  the  causes  must 
be  specifically  assigned.3  Each  ruling  upon  which  a  cause,  or 
reason,  is  based  should  be  specified  with  reasonable  certainty.1 
The  court  will  not  consider  any  other  causes  or  reasons  than 
such  as  are  so  specified.  The  rule  that  the  rulings  must  be 
particularly  specified  is  well  illustrated  by  the  cases  which  hold 
that  instructions  must  be  specifically  designated.5 

;j  841.  Time  of  Filing — Where  there  is  no  statutory  provision 
authorizing  the  filing  of  the  motion  at  a  time  beyond  the  term 


1  Graham  v.  Henderson,  35  Ind.  195; 
Sperry  v.  Dickinson,  82  Ind.  132.  See 
Murray  v.  Ebright,  50  Ind.  302. 

2  First  National  Bank  v.  Williams, 
[26  Ind.  423,  26  X.  E.  Rep.  75;  Hayden 
v.  Woods.  16  Neb.  306.  But  the  mov- 
ing party  can  not  make  errors  available 
which  only  affect  other  parties.  Flood 
:•.  Joyner,  90  Ind.  459. 

8  Addleman  v.  Erwin,  6  Ind.  494; 
Madison,  etc.,  Co.  v.  Trustees.  S  Ind. 
528;  Nutter  i'.  State,  9  [nd.178;  Howes 
v .  Halliday,  10  Ind.  339;  Lagro,  etc., 
Co.  v.  Eriston,  10  Ind.  \\i.  Stevens  v. 
Xevitt.  15  Ind.  224;  Hubbell  v.  Skiles, 
10  Ind.  138;  Zimmerman  v  Marchland, 
2  ;  I nd.  474:  Whalev  v.  Gleason, 40 Ind. 
Kxutz  v.  Craig,  53  Ind  561;  Har- 
ris :  .  Boone,  69  Ind.  300. 

4  Phelps  f.Tilton.  17  Ind  423;  Elnott 
-  Woodward,  tS  Ind.  iSy,  Marsh  v. 
Terrell.  63  Ind    ;6  j     M  irley  v.  Noblett, 


42  Ind.  85;  Morton  v.  Wilson,  25  Ind. 
316;  Coryell  v.  Stone,  62  Ind.  307; 
Evans  v.  State,  67  Ind.  6S;  Watt  v.  De 
Haven,  55  Ind.  128;  Schlicht  v.  State, 
56  Ind.  173;  Lamance  v.  Byrnes,  17 
Nev.  197;  Dawson  v.  Baum,  3  Wash.Ty. 
464.  19  Pac.  Rep. 46;  Hershey  v.  Knees, 
75  Cal.  115,  16  Pac.  Rep.  548;  Lowrie 
;  .  Sal/.  75  Cal.  349.  17  Pac.  Rep.  232; 
Poullain  v.  Poullain,  79  Ga.  11,  4  S.  E. 
Rep.  Si;  Staser  v.  Hogan,  120  Ind.  207, 
21  N.  E.  Rep.  911. 

5  Ohio,  etc.,  v.  McCartney,  121  Ind. 
3S5;  Wallace  V.  Exchange  Bank,  120 
Ind.  265;  Jones  v.  Layman,  123  Ind. 
569.  The  cases  cited  deny  the  doctrine 
of  Dawson  v.  Coffman,  2S  Ind.  220; 
Bartholomew©.  Langsdale,  35  Ind.  27S, 
and  asserl  the  sounder  doctrine  of  such 
cases  as  Estep  v.  Larsh,  21  Ind.  1S3; 
Reeves  v.  Plough,  41  Ind.  204,  and  Grant 
v.  West  fall.  57  Ind.  121. 


OPPORTUNITY   FOR   REVIEW. 

at  which  the  verdict,  finding,  or  decision  it  seeks  to  call  in  re- 
view was  returned  or  made,  the  motion  must  be  filed  during 
the  term.'  Our  code  provides  that  in  cases  where  a  verdict  is 
rendered  on  the  last  day  of  the  term  the  motion  may  be  filed 
on  the  first  day  of  the  next  term  "  whether  general,  special,  or 
adjourned."-  The  motion  must  be  filed  within  the  time  pre- 
scribed by  law  unless  the  time  is  extended  by  agreement,"  and 
it  has  been  said  that  it  is  doubtful  whether  the  time  can  be  ex- 
tended by  agreement.4 

§  842.  Where  Filed — As  the  motion  is  one  addressed  to  the 
court  and  requires  a  direct  ruling  by  the  court  it  must  be 
brought  before  the  court  in  due  form.  The  only  safe  course  is 
to  file  the  motion  in  open  court.  It  will  avail  nothing  to  merely 
file  it  with  the  clerk  in  vacation. s 

§  843.  The  Motion  Ordinarily  goes  to  the  Whole  Case— The  gen- 
eral rule  is  that  a  party  must  direct  his  motion  to  the  entire 
case.6  It  is  not,  as  a  rule,  proper  to  permit  a  party  to  select 
isolated  issues  and  assail  them  by  a  motion  for  a  new  trial. 
This  is  in  accordance  with  the  general  principle  that  a  case  can 
not  be  reviewed  piecemeal.7 

1  We  are  not  here  speaking  of  com-  an  objection  after  the  order  granting  it 
plaints  for  a  new  trial  filed  after  the  is  too  late  to  be  available.  Gei-s  r- 
term,  for  such   cases  are   independent     Franklin  Ins.  Co.,  123  Ind.  172. 

ones  not  falling  within  the  scope  of  the  *  American    White    Bronze    Co.    v. 

subject  of  motions  for  new  trial.    Sand-  Clark,  123  Ind.  230. 

ers  v.  Loy.45  Ind.  229;   I  lines  v.  Durer,  ft  In  Emison  v.  Shepard,  121  Ind.  1S4, 

89  Ind.  339;   Mercer  v.  Mercer,  1 14  Ind.  it   was    said:     "An    application    for  a 

558.     A  complaint   for  a  new  trial  does  new  trial  is  made   to   the  court,  and  it 

not  call  up  rulings  for  review,  but  pre-  must  be  made  during  term  time.     The 

sents  original  question-.  statute   expressly  provides  that   the  ap- 

2  R.  S.  1SS1,  §  501.  The  word  decis-  plication  shall  be  by  motion,  and  a  mo- 
ion  employed  in  the  statute  means  find-  tion  is  an  application  to  the  court." 
ing.  Herkimer  v.  McGregor,  t?6  Ind.  'Johnsons.  McCulloch,  89  Ind.  270; 
:(7.  260.  The  statute  extends  the  time  State  v.  Tcmplin.  122  Ind.  235;  Mills t;. 
beyond  the  term  to  the  first  day  of  a  State.  52  Ind.  1S7;  Veatch  1 
succeeding  term,  hut  no  longer.  Col-  Ind.  291;  Morris  v.  State,  1  Blackf.  37; 
ehen  p.Ninde,  120  Ind.  SS.  Ex  parte  Bradley,  [8  Ind.  548;   Richter 

!  City   of  Evansville  v.    Martin,    103     v.  Koster,  }=;   Ind    |  (<>. 
Ind.  206;    Krutz  v.  Craig,  53  Ind.  561.        T  Champ  v.  Kendrick  (Ind.),  30  N.  E. 
In  cases  where    a    new  trial    is    granted      Rep.  .  and  cases  cited. 


784  ERROR    INJUDICIAL   PROCEEDINGS 

1 1.    Exceptions  to  the  General  Unit — There  are  exceptions  to 

the  general  rule  stated  in  the  preceding  paragraph,  but  they  are 

not  numerous.1  It  is  only  where  the  rights  of  the  party  are  se\  - 
era!  and  distinct  or  the  issues  different  and  independent  that  a 
new  trial  can  lie  awarded  as  to  part  of  a  case.  Cases  in  our 
own  reports  supply  illustration  of  the  award  of  new  trial  as  to 
a  sina'le  issue,  and  enforce  the  doctrine  stated.-  As  an  illus- 
tration  of  a  case  where  there  is  an  independent  issue  may  he 
taken  one  wherein  there  is  an  issue  formed  upon  an  affidavit 
for  attachment  and  one  upon  the  complaint.  In  such  a  case 
there  may  he  a  new  trial  as  to  the  issue  upon  the  affidavit.3 

§  845.  The  Motion  should  be  Complete  in  Itself— In  strictness  the 
causes  stated  in  a  motion  for  a  new  trial  should  be  so  certain 
and  specific  as  to  enable  the  court  to  identify  the  rulings  assailed 
without  resorting  to  any  other  part  of  the  record.  This  general 
doctrine  is  enforced  by  the  cases  which  hold  that  the  motion 
can  not  be  made  sufficient  by  referring  to  matters  contained  in 
a  bill  of  exceptions  not  on  file  at  the  time  of  the  filing  of  the 
motion.4  But  it  has  been  held  that  where  a  bill  of  exceptions 
is  on  file  at  the  time  the  motion  is  filed  it  may  be  resorted  to  for 
the  purpose  of  supplying  defects  in  the  motion.5  We  think  that 
the  true  rule  is  that  the  motion  itself  must  identify  the  ruling 
complained  of  with  such  certainty  as  to  recall  to  the  mind  oi 
the  trial  court  the  particular  ruling,  and  thus  make  it  appear  to 
the  appellate  tribunal  that  the  ruling  was  fairly  presented  to 
the  court  of  original  jurisdiction  for  review. 

1  Woodward  ?.  Ilorst,   io  Iowa,   120;  lett,    105    Ind.  212;  Check  v.   State.  37 

Bond  r.  Wabash,  etc.,  Co.,  67  Iowa,  712;  Ind.  533;  Call    v.   Byram,  39  Ind.  499; 

Schmittc.  Schmitt,32  Minn.  130;  Lake  De  Armond  v.  Glasscock,  40  Ind.  418; 

v.  Bender,  iS  Nev.  361.  Morklar  v.  Lewis.  40  Ind.   1;  Cobble  p. 

3  Houston  i'.  Bruner,  39  Ind.  376;  First  Tomlinson,  50  Ind.  550. 
National  Bank  v.  Williams,  1 26  Ind.  423.         5  Elliott  t..  Russell,  92  Ind.  526, 529.  The 

3  Parsons  v.  Stockbridge,  42  Ind.  121.  doctrine  of  the  case  cited  does  not  seem 

4  Sim  v.  Hurst,  44  Ind.  579;  Rogers  to  have  been  followed  in  any  other  case, 
r.  Rogers,  46  Ind.  1;  Shore  v  Taylor,  and  it  is  doubtful  whether  it  is  sound. 
46  Ind.  345;  Noble  v.  Dickson.  .(S  Ind.  inasmuch  as  it  seems  to  leave  out  of 
t  7 1 :  Dawson  v.  Hemphill,  50  Ind.  422;  consideration  the  important  office-  of  a 
Sutherland  v.  Hankins,  56  Ind.  343;  reviewing  motion  which  are  to  clearlv 
McCammack  v.  McCammack,  86  Ind.  promt  the  ruling  to  the  trial  court  for 

Northwestern,   etc..   Co.  v.  Haze-     re-examination   and  to  make  it  appear 


OPPORTUNITY    FOR    REVIEW. 


785 


§  <S4G.  Rulings  on  the  Pleadings  and  Objections  to  the  form  of 
the  Judgment  not  Assignable  as  Causes  for  a  New  Trial — The  gen- 
eral rule  is  that  rulings  made  in  the  formation  of  issues  can  not 
be  properly  assigned  as  causes  in  the  motion  for  a  new  trial,  in- 
asmuch as  the  motion  only  reaches  matters  relating  to  the  trial 
or  matters  connected  with  it.1  Nor  do  objections  to  the  form  of 
a  judgment  or  decree  form  proper  causes  for  a  new  trial.2  As 
we  have  seen,  a  judgment  is  to  be  questioned  in  a  very  differ- 
ent mode.3  A  motion  for  a  new  trial  assails  a  finding,  decision 
or  verdict,  not  the  judgment.4  Rulings  on  motions  to  disn 
and  the  like,  are  not  properly  assignable  as  causes  for  a  new 
trial.5 

§  847.  Inconsistency  between  the  Answers  of  the  Jury  to  Inter- 
rogatories and  the  General  Verdict — The  question  as  to  the  right 
to  a  judgment  in  a  case  where  the  answers  of  the  jury  to  inter- 
rogatories are  in  conflict  with  the  verdict  can  not  be  raised  by 
a  motion  for  a  new  trial.6  That  question  is  properly  presented 
by  a  motion  for  a  judgment  on  the  answers  to  interrogatories. 
The  refusal  of  the  court  to  submit  interrogatories  or  to  require 
definite  answers  is,  however,  properly  presented  by  a  motion 
for  a  new  trial." 


to  the  appellate  tribunal  that  the  ruling 
was  so  presented  as  well  as  to  present 
to  the  appellate  tribunal  the  same  ques- 
tions as  those  presented  to  the  lower 
court. 

1  Chase  v.  Arctic  Ditchers,  43  I  ml.  74 ; 
Daubenspeck  v.  Daubenspeck,  44  Ind. 
320;  Tucker  v.  Call.  45  Ind.  31 ;  Hamil- 
ton v.  Elkins,  46  Ind.  213;  Bowman  v. 
Phillips,  47  Ind.  341;  Ward  v.  Bate- 
man,  34  Ind.  no;  Cates  v.  Thayer,  93 
Ind.  156;  Reed  v.  Spayde,  56  Ind.  394; 
Ringgenberg  v.  Hartman,  102  Ind.  537; 
State  v.  Cady,  47  Conn.  44;  Croweley 
v.  Pendleton,  46  Conn.  62;  Davis 
Pool,  67  Ind.  425;  Glendy  v.  Lanning, 
6S  Ind.  142;  Line  v.  Iluber,  57  Ind. 
261;  Marks  v.  Trustees,  etc.,  56  Iiul. 
28S;  Marshall  v.  Beeber,  53  Ind.  S3; 
Hunter   v.   Pitzmaurice,  102  Ind.  449; 

50 


Wabash,  etc.,  Co.  v.  Nice,  99  Ind.  152. 

2  Creech  v.  Richards,  76  Ga.  36. 

3  Ante,  §  796. 

4  Sawyer    v.    Sargent,    65    Cal.    259; 
Martin  v.  Matfield,  49  Cal.  42;  R,, 
weig  v.  Frazer,  S2   Ind.    342;   Rodefer 
v.  l'letcher,  S9  Ind.  563. 

5  Tyler  v.  Bowlus,  54  Ind.  333;  Tib- 
betts  v.  O'Connell.66  Ind.  171;  Vawter 
:  .  ( rilliland,  55  Ind.  27S. 

fi  Byram  v.  Galbraith,  75  Ind.  134; 
Brickleyz>.Weghorn,7i  Ind. 497;  North- 
western, etc. .Co.  v.  Blankenship,  94  Ind. 
535.  548;  Tucker  v.  Conrad,  [03  Ind. 
349;  Baltimore,  etc.,  Co.  v.  Rowan.  104 
Ind.  SS,  96;  Louisville,  etc.,  Co. 
Kane.  120  End.  140;  Stockton  v.  Stock- 
ton. 40  Ind.  225,  22S. 

7  Astley  :  .  Capron,  89  Ind.  167; 
Stockwell    v.    Thomas,    76    Ind.    506; 


736  ERROR    [N  JUDICIAL   PROCEEDINGS. 

§  848.  Irregularity  in  the  Proceedings  of  the  Court — If  the  court 
in  matters  pertaining  to  the  trial  violates  settled  rules  of  law  or 
procedure,  and  harm  results  to  the  complaining  party,  he  is  en- 
titled to  a  new  trial.  But  it  is  necessary  that  it  should  appear, 
inferentially  or  directly,  that  the  irregularities  were  of  such 
materiality  as  to  prejudice  his  substantial  rights.1  The  particu- 
lar irregularities  must  be  specified  ;  it  is  not  sufficient  to  employ 
the  general  words  of  the  statute.2  Error  in  granting,  or  in  re- 
fusing to  grant,  a  change  of  venue,  is  an  irregularity  properly 
assignable  as  a  reason  for  a  new  trial.3  A  like  rule  applies  to 
rulings  respecting  applications  for  continuance.'  Denying  a 
trial  by  jury  where  a  party  is  entitled  to  it  is  cause  for  a  new 
trial  and  must  be  assigned  in  the  motion/'  Cases  are  numer- 
ous wherein  it  is  held  that  errors  in  impaneling  the  jury  must 
be  particularly  specified  as  causes  for  a  new  trial.  It  has  been 
held  that  the  failure  of  the  court  to  interfere  upon  request  to 
prevent  or  correct  the  misconduct  of  counsel  in  argument  is  an 
irregularity;  and  if  that  court  refuses  to  interfere  and  the  mis- 
conduct is  material  and  influential,  the  irregularity  will  be  cause 
for  a  new  trial." 

Louisville,  etc.,  Co.    v.  Thompson,  107  2S  Ind.  220;    Krutz  v.  Howard,  70  Ind. 

Ind.    442;     Berghoff  v.    McDonald,  87  174. 

Ind.  549.  See,  also,  Deatty  v.  Shirley,  4  KenU-.Lawson,  12  Ind.  675;  Hughes 
S3  Ind.  21S.  As  to  the  remedy  where  v.  Ainslee,  28  Ind.  34^;  Yater  v.  Mul- 
interrogatories  are  not  answered,  see  len,  23  Ind.  562;  Pence  v.  Christ- 
Bedford,  etc.,  Co.  v.  Rainbolt,  99  Ind.  man,  15  Ind.  257;  Carr  v.  Eaton,  42 
55  1,  where  Peters  v.  Lane,  55  Ind.  391,  Ind.  3S5;  Westerfield  v.  Spencer,  61 
and  Carpenter  v.  Galloway,  73  Ind.  Ind.  339;  Nichols  v.  State,  65  Ind.  512; 
41S,  are  in  part  overruled.  See,  also,  Arbuckle  v.  McCoy,  53  Ind.  63;  Davis 
Pittsburgh,  etc.,  Co.  v.  Hixon,  no  Ind.  v.  Hardy,  76  Ind.  272. 
225;  Jones  v.  Angell,  95  Ind.  376;  Mc-  5  Alley  v.  State,  76  Ind.  94;  Griffin  v. 
Elfresh  v.  Guard,  32  Ind.  40S;  West  v .  Pate,  63  Ind.  273;  Ketcham  v.  Brazil, 
Cavins,  74  Ind.  265.  etc..  Co.,  S8  Ind.  515. 

1  Telford     v.     Wilson,    71    Ind.    555;  6  Richie  v.  State,  59  Ind.   121;   Iluber 

Musselman  v.  Musselman,  44  Ind.  106.  v.  State,  57  Ind.  341;  Gillooley  v.  State, 

1  Tomer   v.    Densmore,  8   Neb.  3S4;  5S   Ind.  182;   Kinnaman  v.   Kinnaman, 

Lowrie  v.  France,  7   Neb.  191;  Phelps  71  Ind.  417;  Porter  v.  Choen,6o  Ind.  338; 

-  .  Tilton,  17  Ind.  423;   Scoville  v.  Chap-  Combs  v.    State,   75   Ind.   215;    School 

man,  17  Ind.  470.  Town  of  Rochester  v.   Shaw,  100   Ind. 

8  Berlin    v.    Oglesbee,   65    Ind.    30S;  268;  Campbell  v.  Maher,  105  Ind.  583; 

Walker  <'.  Heller,  73  Ind.  46;   Knarr  v.  Nelson  v.  Welch,  115   Ind.  270;  Trover 

Conaway,  53  Ind.  120;   llorton  v.  Wil-  v.  State,  115  Ind.  331;  Coble©.  Eltzroth, 

son,  25  Ind.  316;     Dawson  v.  Coffman,  125  Ind.  429;  Carter  v.  Carter,  101  Ind. 


(  (PPORTUNITY    FOR    REVIEW  787 

§849.   Irregularity  of  the  -Jury  or  Prevailing  Party— The  code 

seems  to  make  a  distinction  between  "  irregularity"  and  "  i 
conduct,"1  and  it  is  probable  that  it  was  intended  that  wh 
there  was  intentional  wrong  the  case  should  be  treated  as  one 
of  misconduct,  and  where  there  was  error  but  no  bad  intention, 
the  case  should  hv  regarded  as  one  of  irregularity.  It  is  really 
of  no  great  importance  to  which  class  a  case  is  assigned,  for  if 
there  is  a  proper  specification,  the  court  will  act  upon  it.  Tin- 
material  thing  is  that  the  error  or  wrong  should  be  particularly 
specified  and  should  appear  to  be  influential  and  prejudical. 

§  850.  Abuse  of  Discretion— Where  the  court  by  an  order  or 
ruling  relating  to  the  trial  abuses  its  discretion  to  the  injury  of 
a  party,  the  ruling  or  order  is  properly  specified  as  a  cause  for 
new  trial.  It  is  obvious  that  the  order  or  ruling  must  be  stated 
with  particularity,  since  it  is  incumbent  upon  a  party  who  seeks 
a  reversal  because  of  an  abuse  of  discretion  to  clearly  point  out 
the  particular  wrong.  The  case  must  be  a  clear  and  strong  one 
or  a  reversal  will  not  be  adjudged. 

§851.  Misconduct  of  the  Jury  or  Prevailing  Party— We  have 
elsewhere  shown  that  misconduct  of  parties,  counsel  or  jurors 
may  be  sufficient  ground  for  the  reversal  of  a  judgment.  To 
malce  the  misconduct  available  as  error  the  particular  wrongful 
acts  must  be  specified  in  the  motion  for  a  new  trial.2  General 
statements  will  be  of  no  avail. 


4=;o.     See,  generally.  Territory  v.  Ely,  loch,  1:7  Ind.  500;  People  v.  Wheatley, 

6  Dak.  i:S;   Halloran  v.  Halloran  (111.),  SS  Cal.  1 1  \.  26  Par.  Rep.  95;  Pracht  v. 

27    N.  E.  Rip.  Sj;  Johnson  v.  Slappey,  Whittridge,  44   Kan.  710,  25  Pae.  Rep. 
85  Ga.  570,  11   S^  E.  Rep.  862.  i     Morley  V.  Liverpool,  etc.,  C 

1  R.  S.    1SS1,    §    559,   sulxlivisions    1  Mich.  210,  48  N.  W.   Rep.  50-     Ran- 

an(j  2.  dolpli  v.  Lampkin  (Kv.),  14  S.W.  Rep. 

*  Lennox  v.  Knox,  etc.,  Co.,  62   Me.  538;     Houk    v.    Allen.     [26    Ind.    568; 

$22.     See,  generally,  Newton  v.  Whit-  Cheek  v.  State,  35  Ind.  492;   Hodg 

ney,  77   Wis.  515,  46  N.  W    Rep   B82;  Pale-.  10:  Ind.  y.\.   De  Priesl  1     - 

Louisville,  etc.,  Co.   v.   Hendricks,  128  68   Ind.  5<.o.     Affidavits  of  jurors 

Ind.  462,  28   \.  E.  Rep.   58;  People:',  admissible  to  impeach   verdict.     I 

Schad,  58  Hun.  571;  People  r.  Kennedy,  pell  v.  Northern,  etc.,  Co., 43  Fed.  R< 

57  Hun.  532;  State  v.Gai  S  ;  Wray  v.  Carpenter  (Col.),  27 

Rep.  934;  New  Albany,  etc.,  v.  McCul-  Rep.  24S;  and  cases  cited;  Jon 


788  ERROR    IN  JUDICIAL   PROCEEDINGS. 

§  852.  Accident  or  Surprise — The  motion  must  particularly 
specify  "the  grounds  of  the  accident  or  surprise."1  It  is  es- 
sential to  bring  into  the  record  such  matters  as  show  the  char- 
acter  and  influence  of  the  surprise  or  accident.  Where  the 
ground  of  the  motion  is  that  there  was  an  accident  the  com- 
plaining  party  must  show,  by  the  record,  that  the  occurrence 
relied  upon  as  showing  an  accident,  was  one  against  which  or- 
dinary prudence,  diligence,  and  vigilance  could  not  have  pro- 
vided, and  this  is  substantially  true  where  the  ground  of  the 
motion  is  surprise.  A  party  must  expect,  and  use  diligence 
and  prudence  to  provide  against,  such  acts  and  measures  as 
usually  occur  or  are  taken  in  forensic  contests.2  The  surprise 
must  be  as  to  a  matter  of  fact  and  not  of  law.3  Where  one 
party  wrongfully  misleads  another  by  violating  an  agreement, 
a  new  trial  is  demandable  upon  the  ground  of  surprise,  provided 
the  complaining  party  is  without  fault.4 

§  853.  Errors  of  Law  Occurring  ou  the  Trial — Errors  of  law 
committed  by  the  court  on  the  trial  are  grounds  for  a  new  trial, 

89lnd.82;  Harding  v.  Whitney,  40  Ind.  Rep.   524;    Tripp,  etc.,   Co.  v.  Martin 

379;   McKinley  v.  First  National  Bank,  (Kan.),  26  Pac.  Rep.  424;  Shotwell  v. 

1  iS  Ind.  375,  and  cases  cited.  McElhiney,  101  Mo.  677,  14  S.  W.  Rep. 

1  In  Snodgrass  v.  Hunt,  15  Ind.  274,  754;  Crawford  v.  Georgia  etc.,  Co.,  SG 
it  was  said:  "The grounds  upon  which  Ga.  5,12  S.  E.  Rep.  176;  Louisville, 
the  defendants  were  surprised  should  etc.,  V.  Hendricks,  128  Ind.  462,  and 
have  been  distinctly  pointed  out  in  the  casescited;  Lockwood  v.  Rose,  125  Ind. 
circuit  court.  And  it  is  equally  essen-  588;  Scheible  v.  Slagle,  89  Ind.  323; 
tial  that  each  error  of  law  relied  on  in  Ruger  v.  Bungan,  10  Ind.  451;  Helm  :■. 
support  of  the  motion  should  have  been  First  Nat.  Bank,  91  Ind.  44;  Gardner  :•. 
definitely  presented  to  the  court  for  its  State,  94  Ind.  489;  Sullivan  v.  O'Con- 
consideration."  Schellhous  v.  Ball,  29  ner,77lnd.  149;  Pittsburgh,  etc.,  Co.  t;. 
Cal.  605;  Howe  v .  Briggs,  17   Cal.  385.  Sponier,  85  Ind.  165;  Brownlee  v.  Ken- 

2  Dodge  v.  Strong,  2  Johns.  Ch.  228;  neipp,  41  Ind.  216;  Chamberlain  v. 
Green  v.  Robinson,  5  How.  (Miss.)  So;  Reid,  49  Ind.  332;  Peck  v.  Hensley,  21 
Ames   v.  Howard,  1   Sumn.  482;    Carr  Ind.  344;    Guard   v.  Risk,  11  Ind.  156; 

Gale,    1    Curt.  C.  C.  384;    Alger   v.  Cox  v.  Harvey,  53  Ind.  174. 

Merritt,  16  Iowa,  121;  Turner  v.  Mor-  3  Craig  v.  Fanning,  6  How.  Pr.  336; 

rison,    11    Cal.   21;     Stout  v.  Calver,  6  Hite  v.  Lenhart,  7  Mo.  22;    Robbins, 

Mm.  254;    Jackson  v.  Roe,  9  Johns.  77;  v.  Alton,  etc.,   Co.,  12   Mo.  3S0;    Mc- 

Loorae   v.  Burt,    16   S.    W.   Rep.  439;  Lennan  v.  Prentice,  79  Wis.  488,  4S  N. 

Crowell  v.  Harvey,  30  Neb.  570,  46  N.  W.  Rep.  4S7;  Beals  v.  Beals,27  Ind.  77. 

W.  Rep.  709;  Cole  v.  Fall  Brook  Coal  4  McBride   v.  Settles  (Texas),   16  S. 

Co.,  57   Hun.  585,    10  X.  V.   Supp.  417;  W.  Rep.  422;   Haynes  :•.  State,  45  Ind. 

Gaines  v.  White  (S.  Dak.),  47  N.  W.  424. 


OPPORTUNITY   FOR   REVIEW. 


but  to  be  available  they  must  be  specified  with  particularity. 
It  is  not  sufficient  to  employ  general  terms,  although  the)  are 
such  as  the  statute  supplies.  Each  ruling  is  required  to  be 
specified.1  Errrors  of  law  occurring  on  the  trial  are  such  as 
are  committed  respecting  the  opening  and  closing  of  the  ca 
the  admission  and  exclusion  of  evidence,  the  instructing  of  the 
jury  and  like  matters,  but  if  the  particular  ruling  is  appropri- 
ately specified  it  is  not  important  whether  the  general  term 
"errors  of  law"  is  or  is  not  employed,  although  it  is  proper  to 
employ  it  and  to  follow  it  by  particular  specifications. 

§  854.  Verdict  or  Finding  Contrary  to  Law  or  not  Sustained  by 
Sufficient  Evidence — Under  our  decisions  an  assignment  of  a 
cause  for  a  new  trial  that  the  "  verdict  or  finding  is  not  sus- 
tained by  sufficient  evidence  "  is  sufficient  without  further  speci- 
fication.2 The  assignment  that  the  finding  or  verdict  is  con- 
trary to  law  may  also  be  made  in  general  terms.3  It  has  been 
held  in  a  very  great  number  of  cases  that  the  appellate  tribunal 
will  not  weigh  the  evidence  in  cases  where  there  is  a  conflict, 
but  will  accept  and  act  upon  that  which  the  court  or  jury  trying 
the  case  deemed  trustworthy.     The  cases  in  which  a  judgment 


1  Meaux  v.  Meaux,  Si  Kv.  475;  Cum- 
mings  v.  Ross,  90  Cal.  68,  27  Pac.  Rep. 
62;  Coleman  v.  Gilmore,  49  Cal.  340; 
Danley  v.  Robbins,  3  Ark.  144;  Putnam 
v.  Hannibal,  etc.,  Co.,  22  Mo.  A.pp.  5S9; 
Raymond  v.  Thexton,  7  Mont.  299; 
Phoenix  Ins.  Co.  V.  Readinger.  2S  Neb. 
587,  44  N.  W.  Rep.  S64;  Street  v.  Le- 
mon, etc.,  Co.,  9  Nev.  251;  Dawson  v. 
Biium,  3  Wash.  Ter.  464,  19  Pac.  Rep. 
46;  State  V.  Gallagber,  16  La.  Ann.  3SS; 
Beal  v.  Stone,  22  Iowa.  447.  Seifrath  v. 
State,  35  Ark.412;  Kimball  ©.Whitney, 
15  Ind.  2S0;  Burt  v.  Hoettinger,  28  Ind. 
214;  Spurrier  v.  Briggs,  17  End.  529; 
Elliott  v-  Woodward,  18  Ind.  1S3;  Snod 
grass  v.  Hunt.  15  Ind.  274;  Barnard  v. 
Graham,  14  Ind.  322;  Patterson  ©.Jack, 
59  Iowa,  632;  Brooker  rc.  Weber,  41  Ind. 
421,;  Stone  v.  State,  t-  I,ui-  l,s- 
also,    Kelley  v.  Burnell,    14    Ind.   32S; 


Foster  v.  State,  59  Ind.  481;  Wilds  v. 
Bogan,  55  Ind.  331;  Marsh  v.  Terrell, 
63  Ind. 363. 

2  Collins  v.  Maghee,  32  Ind.  2 
Weston  v.  Johnson,  4S  Ind.  1.  See 
Edmonds  v.  State.  34  Ark.  720.  Some 
of  the  courts  require  a  much  more 
definite  statement.  Hill  v.  Weisler,  49 
Cal.  146;  Parker  p.  Reay.  76  Cal.  103; 
Coleman  v.  Gilmore.  49  Cal.  340;  Fitch 
V.  Bunch,  30  Cal.  20S.  It  is  not  suffi- 
cient to  assign  that  the  "verdict 
against  the  weight  of  the  evidence." 
Waggoner  v.  Liston,  37  Ind.  357. 

5  A-  to  when  a  verdict  can  he  said  to 
he  contrary  to  law.  see    Robinson,  etc.. 
Works  v.  Chandler.    ;(■    Ind 
Bosseker  ;    Cramer,  lS  Ind.  44;     G 
X).  State.  68  hid.  10!  ;    Pottfi  P.  Fclton,  70 
Ind.   100. 


7<iO  ERROR    IN  JUDICIAL    P  DINGS. 

has  been  reversed  upon  the  ground  that  the  finding  or  verdict 
is  not  sustained  by  the  evidence  are  very  rare.  Many  appel- 
late courts  refuse  to  consider  such  a  cause  at  all. 

::  855.  Damages — Questioning  the  Amount  of  Recovery— In  order 
to  make  an  error  in  the  assessment  of  damages  available,  the 
specification  in  the  motion  for  a  new  trial  must  be  directly  ad- 
dressed to  the  amount  of  the  recovery.  A  party  cannot  attack 
the  assessment  of  damages  unless  he  assigns  as  a  cause  for  a 
new  trial  the  specific  reason  that  the  amount  awarded  is  errone- 
ous.1 Thus,  a  party  can  not  make  available  an  error  in  the  as- 
sessment of  damages  under  a  specification  that  the  verdict  is 
contrary  to  the  evidence.  It  is  sufficient  to  employ  the  general 
terms  of  the  statute  in  assailing  the  amount  of  the  recovery 
without  particularlv  specifying  the  error  in  the  assessment.2 

§  856.  Damages  in  Aetions  in  Tort  and  Damages  in  Actions  on 
Contract — It  is  an  established  general  rule  that  a  party  can  not 
assign  one  cause  for  a  new  trial  and  succeed  upon  another.  In 
accordance  with  this  general  principle,  it  is  held  that  a  cause 
challenging  the  assessment  of  damages  in  actions  for  a  tort  is 
ineffective  in  actions  upon  contract.  The  rule  in  this  state  is 
that  in  order  to  question  the  amount  of  damages  assessed  in  ac- 
tions ex  delicto,  the  fourth  statutory  cause  for  a  new  trial  must 
be  assigned,3  and  in  order  to  question   the  assessment  of  dam- 

1  Davis  v.  Montgomery,  123  Ind^Sj;  26M0.  App.431 ;  Mcnkr. Home, etc., Co. 

Thickstun  v.  Baltimore,  etc.,   Co.,   119  76  Cal.  50,  14  Pae.  Rep.  S37;   Mazeheitz 

I  ml.   26;     Fort   Wayne  v.  Beyerle,   no  v.   Pimentel,   S3    Cal.    450;     Allgro    v. 

Ind.  100;   Millikan  v.  Patterson,  91  Ind.  Duncan,  24  Howard  Pr.  (N.  Y.),  210. 

515;    McElhocs    v.   Dale,  Si     Ind.    67;  In   McGrime  v.  State,  30  Ind.   140,    it 

Langohr  v.  Smith,  Si    Ind.  495;   Hyatt  was  held    that   the    specification,   "the 

v.    Mattingly,  6S    Ind.    271;     Kelso    v.  court  erred  in  finding  any  sum  against 

Wolf,  70  Ind.  105;   Ringlc  v.  First  Na-  the  defendant,"  was  insufficient. 
tional    Bank,    107    Ind.  425;    Frank    v.         3  McCormick,  etc.,  Co.  v.  Gray,  114 

Kessler,    30  Ind.  8;   Dix  v.  Akers,    30  Ind.  340,  16  N.  E.  Rep.  7S7.     In  Clark 

[nd.431;  City  of  Indianapolis  v-  Parker,  Civil  Township©.  Brook6hire,  114  Ind. 

31    Ind.   230;     Walpole   v.   Carlisle,    32  437,  it  was  said:     "It  is  assigned  as  a 

Ind.  415;   Rosenbaum  v.  McThomas,  34  cause    for   new  trial  that  the  damages 

I  nil.  331;  Oiler  v.  Bodkcy,   17  Ind.  600;  are  excessive.    This  is  not  an  action  for 

Spurrier  v.  Briggs,  17  Ind.  529.  tort,  and  hence  that  assignment  raises 

1  Lake    Erie,  etc.,  Co.  v.   Acres,  108  no  question  as  to  the  amount  of  the  re- 

Ind.  548.     See,  also,  Ray  v.  Thompson,  covery."     This  doctrine  is  asserted  in 


OPPORTUN  [TY    !•'<  >R    REVIEW. 


'91 


ages  in  actions  ex  contractu,  the  fifth  statutory  cause  musl 

specified.1 

§  857.  Newly  Discovered  EvideDee — A  motion  for  a  new  trial 
upon  the  ground  of  newly  discovered  evidence  is  not  regarded 
with  favor.  The  policy  of  the  law  is  to  require  of  parties  care, 
diligence  and  vigilance  in  securing  and  presenting  eviden 
It  is  indispensably  necessary  that  the  moving  party  should 
clearly  show  that  he  exercised  diligence  in  his  efforts  to  dis- 
cover and  produce  the  evidence  on  the  trial.3  The  facts  con- 
stituting the  diligence  must  be  stated  ;  it  is  not  enough  to  aver 
diligence  in  general  terms.4  The  record  must  make  it  clearly 
appear  that  the  newly  discovered  evidence  is  of  such  a  char- 
acter as  that  it  would  probably  change  the  result  in  the  event 
that  a  new  trial  should  be  granted  5     It  is  held  in  a  great  num. 


other  cases.  Thomas  r.  Merry,  113 
Ind.  83;  Lake  Erie,  etc.,  Co.  v.  Acres, 
108  Ind.  54S;  Dix  v.  Akers,  30  Ind. 
431;  Franks.  Kessler,  30  Ind.  8;  Mc- 
Kinney  v.  State,  117  Ind.  26;  Smith  v. 
State,  117  Ind.  167;  Hogshead  v.  State, 
120  Ind.  327;  Western,  etc.,  Co.  v.  Stu- 
debaker,  etc.,  Co.,   124  Ind.  176. 

1  Moore  v.  State,  114  Ind.  414,  422. 

2  Hinesr.  Driver,  100 Ind.  31 5;  Moore 
-•.  Philadelphia  Bank,  5  S.  &  R.  (Pa.) 
41;  Baker  v.  Joseph.  16  Cal.  173;  Coe 
V.  Givan,  1  Blackf.  367. 

3  Harrington  -•.  Witherow.  2  Blackf. 
37;  Cooper  v.  State,  120 Ind. 377;  State 
v.  Clark,  16  Ind.  97;  Martin  v.  Garver. 
40  Ind.  351;  Bissotr.  State.  53  I1UL40S; 
Clouser  v.  Clapper,  59  Ind.  54S;  Test  v. 
Larsh,  100  Ind.  562;   Skaggs  v.  S 

10S  Ind.  53;  Blackburn  v.  Crowder,  no 
Ind.  1:7;  Allen  v.  Bond,  112  End.  ;:;,; 
McCauley  v.  Murdock,  97  Ind.  229; 
Ragsdale  v.  Matthews,  93  [nd,  589; 
Du  Souchet  v.  Dutcher,  113  Ind.  249; 
Pennsylvania  Co.  V.  Nations,  in  Ind. 
203;  Marks  v.  State,  101  Ind. 353;  Pem- 
berton  v.  Johnson.  113  [nd.  538;  Bart- 
ley  V.  Phillips,  114  Iiul.  1S9;  She\valter 
v.  Williamson,  125  Ind.  373;  First  Nat. 


Bank  v.  Murdough,  40  Iowa.  26;  Car- 
son -•.  Henderson,  34  Kan.  404;  Evans 
v.  Christopherson,  24  Minn.  330;  Mo- 
ses v.  Vroman.  5  Wis.  147,  149;  How- 
land  v.  Reeves,25  Mo.  App.458;  Peter- 
son v.  Gresham,  25  Ark.  380. 

*  Keisling  v.  Readle,  1  Ind.  App.  240, 
243;  Toncy  r.Toney,  73  Ind.34:  Hines 
v.  Driver,  100  Ind.  315;  Wall  v.  State, 
So  Ind.  140;  Ragsdale  V,  Matthews.  93 
Ind.  5S9;  Schnurr  v.  Stuts,  119  Ind. 
429;  Ward  v.  Voris,  117  Ind. 
Skaggs  v.  State,  10S  Ind.  53,  and  cases 
cited;  Anderson  v.  Hathway  (Ind.), 
30  N.  E.  Rep.  ;  Smith  v.  Will- 
iams. 11  Kan.  104.  See  Pemberton  v. 
Johnson.  1 13  Ind.  53S;  Blackburn  v. 
Crowder,  1 10  Ind.  1 27. 

5  Oneal  v.  State,  47  Ga.    229;    State 
v.  Stain.  82  Me.  472;  Tull  v.  Pop. 

N.  C.   [83;    Traveler-.,  etc.,  Co.  V.  Har- 

vey,  82  Va.  949;   Windham,  etc..  Bank 

V.  Kendall.  7  R.  I.    77;    Bl       E  <  rlea- 

son,  27  Vt.  114:  Bixby  v.  State,  15  Ark. 
305;  Petefish    v.  Watkins,   124  111.  384; 

McCormick     V.    Central    R.    R.  c 

Cal.  506;  Grace  1  McArthur,  7''  Wis. 
641;  Gallup  v.  Henderson,*  N.Y.Supp. 
914;  Hall   :.   Lyons,   29   W.   Ya.  410; 


793 


ERROR   IN    JUDICIAL  PROCEEDINGS. 


ber  of  cases,  and  by  main-  courts,  that  a  new  trial  will  not  be 
granted  where  the  new  evidence  is  merely  cumulative.1  The 
general  rule  that  a  new  trial  will  not  be  granted  to  let  in  purely 
impeaching  evidence  is  declared  by  cases  too  numerous  to 
cite.2  The  motion  is  required  to  give  the  names  of  the  newly 
discovered  witnesses,  if  the  new  matter  consists  of  oral  testi- 
mony, or  if  it  consists  of  a  writing,  the  writing  must  be  pro- 
duced if  it  can  be  done  ;  if  it  is  not  in  the  power  of  the  party  to 
produce  it,  a  statement  of  its  substance  should  be  given.  The 
affidavit  of  the  newly  discovered  witness  must  accompany  the 
motion.3  The  party  must  show  by  his  own  affidavit  the  truth 
of  the  testimonv,4  the  probability  of  procuring  the  evidence  in 


Morgan  v.  Bell,  41  Kan.  345;  McDonald 
v.  Early,  24  Neb.  SiS;  People  v.  Sacket  t . 
14  Mich.  320;  State  v.  Burge,  7  Iowa, 
255;  Parsons  v.  Piatt,  37  Conn.  563; 
Culbertson  v.  Hill,  S7  Mo.  553;  Byrne 
v.  Reed,  75  Cal.  277;  Mechanics,  etc., 
Co.  v.  Nichols,  16  N.  J.  L.  410;  Leschi 
V.  Territory,  1  Wash.  Tcr.  13;  Ander- 
son V.  Market,  etc.,  Bank,  66  How.  Pr. 
S;  Brady  v.  Mayor  of  New  York,  22 
J.  &  S.  (N.  V.)  457;  Rainey  v.  State, 
53  Ind.  27S;  Simpson  v.  Wilson,  6  Ind. 
474;  llines  v.  Driver,  100  Ind.  315,  and 
cases  riled;  Suman  v.  Cornelius,  7S 
Ind.  506. 

1  We  cite  a  few  of  the  many  cases. 
Sutherlin  v.  State,  108  Ind.  389;  De 
Hart  v.  Aper,  107  Ind.  4(10:  Marshall  v. 
Mathers,  103  Ind. 458;  Harper  v.  State, 
roi  Ind.  109;  Dodds  v.  Vannoy, 61  Ind. 
89;  Winsett  v.  State.  57  Ind.  26;  Mar- 
tin v.  Garver,  40  Ind.  351;  State  v. 
Clark,  16  Ind.  97;  Simpson  v.  Wilson, 
6  Ind.  474;  Kaul  v.  Brown  (R.  I.),  20 
Atl.  Rep.  10;  Jones  v.  Chicago,  etc., 
Co.,  42  Minn.  1S3,  43  N.W.  Rep.  H14; 
Erskine  v.  Dully.  76  Ga.  602;  Marcum 
:■.  Commonwealth  (Ky.).i  S.  W.  Rep. 
727;  Oeder,  80  Iowa,   72,  45 

N.   W.    Rep.    543:     Dollman    v.  Mun- 
10  Mo.  85,   2   S.  W.  Rep.  134:  Fay 
z>.  Richards,   30   111.   App.   477:     Baker 
v.  Moor,  S4  Ga.  iS6.  10  S.  E.  Rep.  737; 


Wieting  v.  Millston,  77  Wis.  ^23,  4A  N. 
W. Rep. 879;  Brazil  V. Peterson. 44  Minn. 
212.  46  N.  W.  Rep.  331;  Roberts  V. 
Johnstown  Bank,  60  Hun.  576,  14  N.  V. 
Supp.  432. 

2  Of  the  great  number  of  cases  we 
lite,  McDermott  v.  Iowa,  etc.,  Co. 
(Iowa),  47  N.  W.  Rep.  1037;  Russell  v. 
Nail,  79  Texas,  664.  15  S.  W.  Rep.  635; 
State  v.  Garig  (La.1.  8  So.  Rep.  934; 
Shotwell  :•.  McElhinney,  101  Mo.  677, 
14  S.  W.  Rep.  754;  Husted  v.  Mead.  5S 
Conn.  55,  19  Atl.  Rep.  233;  State  v. 
Smith,  35  Kan.  61S,  n  Pac.  Rep.  90S; 
Evans  v.  State,  67  Ind.  6S;  M'Intire  v. 
Young,  6  Blackf.  496:  Humphreys  v. 
State.  75  I  ml.  469;  O'Dea  v.  State,  57 
Ind.  31;  Bland  v.  State,  2  Ind.  608; 
Keck  v.  Umphries,  4  Ind.  492;  Flem- 
ing v.  State,  11  Ind.  2t.x\  Jackson  v. 
Sliarpe,  29  Ind  167;  Brown  v.  Grove, 
1 16  Ind.  S4. 

3  McQueen  v.  Steward.  7  Ind.  535; 
Gibson  v.  State,  9  Ind.  264;  Harris  v. 
Rupel,  14  Ind.  209;  Shipman  v.  State, 
38  Ind.  549;  Harper  v.  State.  101  Ind. 
109;  Gardner  v.  State,  9.1  Ind.  4S9; 
Hill  v.  Roach,  72  Ind.  57. 

*  Harrison  School  Township  "'.  Mc- 
Gregor, 96  Ind.    185;   Hatton  v.  Tones, 
78  Ind.  466;   McCammack  v.  McCam 
mack,  S6  Ind.  3S7. 


OPPORTUNITY   FOR   REVIEW.  793 

the  event  that  a  new  trial  is  awarded  and  the  facts  constituting 
diligence.  It  is  implied  in  our  statement  that  the  evidence  must 
be  such  as  would  probably  change  the  result,  that  the  new  lv  dis- 
covered evidence  must  be  competent,  material  and  relevant.1 
The  rule  that  a  clear  and  full  showing  must  be  made  is  enforced 
with  strictness,2  and  for  the  reason  given  in  the  opening  sentence 
of  this  paragraph.  It  is  not  a  sufficient  excuse  for  failing  to  pro- 
duce the  affidavit  of  the  newly  discovered  witness  to  aver  that 
ne  refuses  to  make  an  affidavit,  for  the  reason  that  the  court 
will,  upon  proper  application,  compel  the  witness  to  make  the 
necessary  affidavit.3 

§  858.  Counter  Affidavits — Counter  affidavits  upon  the  ques- 
tion of  diligence  are  admissible.4  If  there  is  a  conflict  of  evi- 
dence upon  the  disputed  question  of  fact  the  appellate  tribunal 
will  not  disturb  the  finding  of  the  trial  court.5  As  we  have 
elsewhere  shown,  affidavits  and  like  matters  must  be  properlv 
brought  into  the  record.  It  is  not  sufficient  to  incorporate  or 
recite  them  in  the  motion.6 

§  859.  Verification  of  the  Motion — A  motion  presenting  for  re- 
view rulings  of  the  court  such  as  those  made  in  admitting  and 
excluding  evidence  and  the  like  is  not  required  to  be  verified. 
Motions  assigning  as  causes,  misconduct  of  the  jury  or  the  pre- 
vailing party,  accident  or  surprise,  and  newly  discovered  evi- 

1  Marks  v.  State,  101  Ind.  353;  Moon-  *  Lister  v.  Boker,  6  Blackf.  439;  Duig- 

ey  v.  Kinsey,  90  Ind.  t,$\   Ilamm  v.  Ro-  nan  v.  YVyatt,  3  Blackf.  3S5;  Humphreys 

mine,    98    Ind.     77;    Knox  v.   Work,  2  v.  Klick,  49  Ind.  1S9. 

Binn.  (Pa.)  5S2;   Lisher  v.  Pratt.  9  la.  3  Rater  v.  State,  49  Ind.  507.     As  to 

59;    Howard    v.    Winters,   3   Nev.   539;  what  is  a  sufficient  excuse  for  a  failure 

State  1).  Ray,  53  Mo.  345;  Hupp  v.  Mc-  to  produce  the  witness,  see  Gibson  v. 

Inturf,  4  III.  App.  449;   Bond  v.  Cutler,  State,  9  Ind.  264. 

7  Mass.  205;   Drayton  v.  Thompson,  1  *  Zeller  v.  Griffith,  S9  Ind.  So. 

Bay.  (So.  Car.)  263;   Pike  v.  Evans,   15  5  De  Hart  v.  Aper,  107  Ind.  460. 

Johns.  210;  Wynne  :'.  Newman,  75  Va.  6  Ante,  §§  S14,  Si^.     Kitch  v.   Oatis, 

Si  1 :   Hobler  v.  Cole,  49  Cal.  250;   Wal-  79  Ind.  96;    Harper  v.   State,   101  Ind. 

lace   v.  Tumlin,  42  Ga.  462;  Parker  v.  109;   Allen  p.  Gillum.  16  Ind.  234;  Mc- 

Bates,  29  Kan.  597;  Meyer  v.  Fiegel,  Kee  v.   McDonald,  17  Ind,  518;  Free- 

3S  How.  Pr.  424;   Sharpe  v.  Traver,  S  man  v.  Bowman,  25  Ind.  236. 
Minn.  273;  Devot  r.  Marx,  19  La.  Ann. 
491. 


794 


ERROR  IN  JUDICIAL  PROCEEDINGS. 


dence  must  be  supported  by  affidavit.1  As  appears  from  what 
has  been  said  the  affidavits  must  present  substantive  and  ma- 
terial facts.  Mere  general  statements  or  mere  averments  of 
conclusions  will  not  supply  the  place  of  facts,  nor  will  mere 
outlines  be  sufficient,  for  the  facts  must  be  so  stated  that  the 
court  can  perceive  their  materiality  and  competency  and  esti- 
mate their  probable  influence.2 

1  R.  S.  iSSi.  ()§  559,  562.  haustive    collection    of    authorities    ir. 

2  The  subject  of  new  trials  is  admira-  made  by  the  writer  of  the  article  to 
hlv  discussed  in  an  article  in  the  Amer-  which  we  have  referred  upon  ai.  branch- 
ican  and  English  Encyclopedia  of  Law,  es  of  the  subject. 

vol.  16,  p.  500.     An  excellent  and  ex- 


Part  III. 

FORMS. 


CHAPTER   I. 

FORMS  USED    IN    TRIAL    PRACTICE   INCIDENT   TO  APPEALS. 

^  S6o.    Caption — Title  of  cause — Sig-  §  S6S.  Misconduct   of  jurors — Bill    of 

nature.  exceptions. 

S6i.   Agreed  case.  869.  Appeal  in  term — Record  entry. 

862.  Reserved  questions  of  law — Bill  870.  Appeal  bond. 

of  exceptions.  871.   Appeal  after  term — Notice  be- 

863.  Questions  of  law  arising  on  the  low  to  party. 

instructions  —  Bill   of  excep-         872.    Appeal    after   term — Notice  to 
tions.  the  clerk. 

864.  Motion  to  dismiss  appeal — Bill         S73.    Praecipe  for  transcript. 

of  exceptions.  874.    Notice  to  co-party. 

S65.    Motion  to  make  more  specific —  S75.    Transcript — Formal  parts. 

Bill  of  exceptions.  S76.   Transcript — Certificate  of  clerk 
Sb6.   Challenge  of  juror — Bill  of  ex-  where  entire  record  is  ordered. 

ceptions.  377.   Transcript  —  Certificate    where 
867.    Bill  of  exceptions  on  the  over-  special  directions  are  given. 

ruling  of  a  motion  for  a  new 

trial 

§  860.  Caption — Title  of  Cause — Signature— In  order  to  econ- 
omize space  we  say,  once  for  all,  that  motions,  pleadings,  and 
instruments  must  be  properly  entitled.  The  names  of  the 
parties  should  be  given  and  the  title  of  the  court.  The  papers 
filed  in  the  trial  court  should,  of  course,  be  entitled  according 
to  the  title  of  the  case  in  that  court  and  the  parties  designated 
as  plaintiffs  and  defendants.  The  transcript  and  all  papers 
filed  on  appeal  should  give  the  title  of  the  court  to  which  the 
appeal  is  prosecuted.  As  is  well  known  the  parties  on  appeal 
are  designated  as  appellants  and  appellees.  We  do  not  give 
the  titles  in  the  forms  that  follow,  but  it  is  to  be  understood  that 
all  papers  are  to  contain  the  proper  title  of  court  and  parties 
in  the  caption.  It  is  also  to  be  understood  that  the  pleadings, 
motions  and  the  like  must  be  appropriately  signed,  and  that 
bills  of  exceptions  must  be  properly  signed  and  attested. 

(797)  * 


798 


FORMS. 


61.   Agreed  Case. 

The  plaintiff  (naming  kirn)  and  the  defendant  {naming  him) 
do  agree  that  the  controversy  between  them  shall  be  and  is 
hereby  submitted  to  the  court  as  an  agreed  case.  The  afore- 
said parties  do  agree  that  the  facts  in  the  case  are  as  follows: 
t  Here  state  the  facts  fully '.' ) 

The  demand  of  the  plaintiff  is  that  he  is  entitled  to  recover 
of  the  defendant  {here  set  forth  the  nature  of  the  plaintiff's  de- 
mand). The  demand  of  the  defendant  is  {here  set  forth  the  de- 
fendant's demand') . 

If  the  law  is  with  the  plaintiff  the  court  is  authorized  to  award 
him  judgment  upon  the  facts  here  submitted  as  an  agreed  case  ; 
it"  the  law,  upon  the  facts  stated,  is  with  the  defendant  the  court 
is  authorized  to  award  him  judgment.2 

{Affidavit.)  The  plaintiff  {naming  him)  and  the  defendant 
{naming  him)  being  each  duly  sworn,3  say  upon  oath,  that  the 
controversy  stated  in  the  foregoing  agreed  case  "  is  real,  and 
the  proceedings  are  in  good  faith  to  determine  the  rights  of  the 
parties." 

Subscribed  and  sworn  to  before  me  this day  of 


{Record  Entry.)  Come  now  the  plaintiff  {naming  him)  and 
the  defendant  {flaming  him)  and  file  an  agreed  case  and  affi- 
davit which  reads  thus  {here  copy  statement  and  affidavit),  and 
the  said  parties  submit  the  said  agreed  case  to  the  court  for 

hearing  and  judgment.     And  now  on  this day  of 

the  court  finds  for  the  plaintiff  that  he  is  entitled  to  recover 
{here  give  the  finding).  Wherefore  it  is  considered  and  adjudged 
by  the  court  that  {here  give  the  judgment  or  decree).  To  which 
finding  and  judgment  the  defendant  at  the  time  excepts,4  and 
prays  an  appeal  to  the  Supreme  Court  of  the  State  and  asks  for 
sixty  days  in  which  to  file  a  bond,  and  the  court  fixes  the  pen- 
alty of  the  bond  at dollars,  and   grants  sixty  days  time  in 

which  to  file  it. 

1  The  facts,  not  the  evidence,  must  be  made  by  the  one  of  the  parties.     Booth 

Btated.     Ante,  §§  228,  229.  v.  Cottingham,    126    Ind.  431.     Ante, 

"The    agreed      statement    must,     of  §223.     The   affidavit  can  not  be  made 

course,  be  properly  signed.     Both  par-  by  an  attorney.     Ante,  §  227. 

hould  sign  it.  4  Ante,  § 

3  It    is    sufficient    if  the    affidavit   is 


FORMS   USED   IN    TRIAL  PRACTK  T'.i» 

§  862.   Reserved  Questions  of  Law — Bill  of  Exceptions. 

Be  it  remembered,  that  the  above  entitled  cause  came  on  for 

trial  on  the day  of ,  being  the judicial  day  of 

said  court,  and,  before  the  commencement  of  the  argument, 
the  plaintiff,  in  writing,  requested  the  court  to  instruct  the  jury 
in  writing  and  to  give  to  the  jury  the  following  instruction  : 

"  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  bought 
the  promissory  note  described  in  the  complaint  from  John  Jones, 
the  payee,  that  Jones  indorsed  the  note  to  the  plaintiff,  that 
the  plaintiff  gave  full  value  for  it,  bought  it  before  maturity,  in 
good  faith,  and  without  notice  of  any  fraud  on  the  part  of  the 
pavee,  or  of  any  other  defense,  your  verdict  should  be  for  the 
plaintiff."  But  the  court  refused  to  give  the  jury  the  said  in- 
struction to  which  the  plaintiff  at  the  time  excepted,  and  gave 
the  jury,  in  writing,  the  following  instructions.  {Here  insert.) 
That  the  said  instructions  were  all  that  were  given  in  the  case. 
That  the  plaintiff  gave  in  evidence  the  note  described  in  the 
complaint.  {Here  insert.)  That  the  defendant  executed  the 
said  note  upon  the  faith  and  in  reliance  on  the  fraudulent  rep- 
resentation of  the  payee  Jones,  that  {set  forth  the  representation). 
That  the  defendant  received  no  consideration  whatever  for  said 
note.  That  the  plaintiff  did  buy  said  note,  in  good  faith,  before 
maturity,  that  he  paid  therefor dollars,  that  Jones  in- 
dorsed the  same  to  the  plaintiff,  and  that  the  plaintiff  bought 
said  note  in  the  usual  course  of  business  and  without  notice  of 
any  fraud  on  the  part  of  Jones  and  without  notice  of  any  de- 
fense. That  the  foregoing  statement  covers  and  embraces  all 
the  facts  of  the  case. 

That  the  jury  returned  a  verdict  for  the  defendant  in  the 
words  and  figures  following,  to  wit,  {here  insert)  whereupon  the 
plaintiff  filed  a  motion  for  a  new  trial  in  the  words  and  figures 
following,  to  wit,  {here  insert)  and  the  court  overruled  said  mo- 
tion to  which  the  plaintiff  at  the  time  excepted.  The  plaintiff 
thereupon  notified  the  court  that  he  intended  to  take  the  case 
to  the  Supreme  Court  upon  a  reserved  question  of  law,  and 
upon  a  bill  of  exceptions,  and  tiled   the   following  motion,1  to 

1  It  is  probably  not    necessary  to  file  a  written  motion,  but  it  is  the  safer  and 
better  practice.     Ante,  §  235. 


800  FORMS. 

wit,  {here  insert1),  and  at  the  time  requested  the  court  to  cause 
the  record  to  be  so  made  as  to  enable  the  Supreme  Court  to 
apprehend  the  particular  question  involved,  and  the  court  so 
directs.  That  the  court  rendered  and  caused  to  be  entered  the 
following  judgment,  to  wit,  {here  insert).  That  the  court  in 
order  to  present  the  question  oflaw  reserved  by  the  plaintiff  so 
as  to  enable  the  Supreme  Court  to  apprehend  the  particular 
question  involved  does  sign  and  seal  this  bill  of  exceptions,  and 
orders  that  it  be  made  part  of  the  record. 

§  863.   Questions  of  Law  arising  on  the  Instructions— Bill  of  Ex- 
ceptions. 

Be  it  remembered  that  on  the day  of ,  18 — ,  the 

above  entitled  cause  was  submitted  to  a  jury  for  trial  and  the 
defendant,  before  the  commencement  of  the  argument,  in 
writing  requested  the  court  to  instruct  the  jury  in  writing  and 
to  give  to  the  jury  the  following  instruction  {here  insert  defend- 
ants request  and  instruction),  but  the  court  refused  to  give  the 
said  instruction,  to  which  ruling  the  defendant  at  the  time  ex- 
cepted. That  the  court  of  its  own  motion  gave  to  the  jury  the 
following  instructions  {here  insert  the  instructions  of  the  court), 
and  also  gave  the  following  instructions  asked  by  the  plaintiff 
{here  insert  instructions  given  at  the  request  of  the  -plaintiff). 
That  no  other  instructions  were  given  to  the  jury.  That  upon 
the  retirement  of  the  jury  the  defendant  gave  to  the  court  in 
writing  the  following  notice  {here  insert),  thereby  notifying  the 
court  that  he  intended  to  take  the  case  to  the  Supreme  Court, 
upon  the  questions  of  law  arising  on  the  refusal  to  give  the  in- 
struction asked  by  him,  pursuant  to  Rule  XXX  of  that  court. 
That  the  undersigned  judge  of  the  said  court,  in  order  to  pre- 
sent the  questions  of  law  arising  upon  the  refusal  to  give  the 
instruction  asked  by  the  defendant,  hereby  states  that  there 
was  competent  evidence  tending  to  prove  the  defendant's  theory 
and   material  to  the  point  covered  by  said  instruction,  in  this, 

1  Form  of  motion:  The  plaintiff  moves  the  instruction  asked  by  him,  that  the 

the  court  to  cause  the  record  to  be  so  Supreme  Court  may  be  able  to  appre- 

made  as  to  present  the  question  of  law  hend  the  particular  question  involved. 
bv  him  reserved  on  the  ruling  refusing 


I  ORMS   I  SED   l\   TRIAL   PRACTICE.  gfjl 

that  the  evidence  tended  to  prove  the  following  facts.  [Here 
set  forth  the  facts . ' ) 

And  now  to  present  the  questions  of  law  arising  on  the  re- 
fusal to  give  the  instruction  asked  by  the  defendant  as  afore- 
said, the  judge  of  said court  does  sign  and  seal  this  bill 

of  exceptions  and  order  that  it  be  made  part  of  the  record. 
Signed  and  sealed  this day  of . 

£  864.   Motion  to  Dismiss  Appeal — Bill  of  Exceptions. 

Be  it  remembered  that  on  this  the  day  of ,  1892, 

being  the judicial  day  of  the term  of  said  court,  the 

defendant  filed  the  following  written  motion  to  dismiss  the  appeal 
of  the  plaintiff,  to  wit  :2  The  defendant  moves  the  court  to  dis- 
miss the  appeal  of  the  plaintiff  from  the  board  of  commissioners 
of  Marion  county,  for  the  reason  that  the  plaintiff  was  not  a 
party  to  the  proceedings  before  said  board  of  commissioners, 
and  no  affidavit  was  filed  by  him,  or  any  one  in  his  behalf, 
"  setting  forth  that  he  has  an  interest  in  the  matter  decided 
and  that  he  is  aggrieved  by  the  decision  of  the  said  board," 
and  that  as  appears  from  the  transcript  of  the  proceedings  of 
the  board  no  affidavit  was  filed.  The  court  overruled  the  said 
motion,  to  which  ruling  the  defendant  at  the  time  excepted,  and 
thereupon  the  defendant  presents  this  his  bill  of  exceptions,3 
which  is  signed  and  sealed  the  day  and  year  aforesaid  by  the 
judge  of  said  court. 

§  865.  Motion  to  make  more  Specific — Bill  of  Exceptions. 

Be  it  remembered  that  on  the day  of ,  18 — ,  be- 
ing the judicial  day  of  the term  of  the  said 


court,  the  defendant  filed  a  motion  in  writing  to  compel  the 
plaintiff  to  make  his  complaint  more  specific,  which  motion  is 
as  follows,  to  wit :     {Here  insert,  motion  to  make  more  specific 

1  It  is  the  facts  which  the  evidence  whereupon  the  defendant  asks  ten  days 
tends  to  prove,  and  not  the  evidence,  time  in  which  to  reduce  the  exception 
that  should  be  set  forth.  to  writing,  and  the  court  grants  the  re- 

2  It  is  not  necessary  to  write  the  mo-  quest  and  allows  ten  days  time  to  re- 
tion  in  the  bill,  but  it  may  be  brought  duce  the  exceptions  to  writing,  a-  re- 
into  it  by  reference.     Ante,  $§  818,  S19.  quested. 

3  If  time  is  taken,  the  recital  ma\    b    : 

51 


802  FORMS. 

filed  on  the day  of iS — .')     And  the  court  overruled 

the  motion  to  which  the  defendant  at  the  time  excepted.  The 
defendant  thereupon  asked  ten  days  time  in  which  to  reduce 
his  exception  to  writing,  and  the  court  orders  that  ten  days 
time  be  given  to  reduce  the  exception  to  writing  as  requested. 

And   now    on  the day    of ,  being   the judicial 

day  of  said  court  and  within  the  time  heretofore  granted  the 
defendant  presents  to  the  judge  of  said  court  this,  his  bill  of 
exceptions,  which  is  this  day  signed  and  sealed  by  the  judge 
of  the  court  aforesaid.2 

£  866.    Challenge  of  Juror — Bill  of  Exceptions. 

Be  it  remembered  that  the  above  entitled  cause  came  on  for 

trial  on  the day  of ,   1892,  being  the judicial 

day  of  the  term  of  the court,  and  came   also  the  jury 

called  to  try  said  cause.  That  each  and  all  of  said  jurors  were 
duly  sworn  to  true  answers  make  to  such  questions  as  might  be 
asked  them  touching  their  competency  to  serve  as  jurors  ;  that 
one  of  the  said  jurors  so  called  and  sworn  was  John  Doe. 
That  the  plaintiff,  by  his  counsel,  propounded  to  John  Doe  the 
following  questions  to  which  he  returned  the  following  answers. 
{Here  set  forth  in  full  the  questions  and  answers?)  That  the 
plaintiff  thereupon  objected  to  the  competency  of  said  Doe  to 
serve  as  a  juror,  and  stated  to  the  court,  as  ground  of  chal- 
lenge, that  the  said  Doe  shows  by  his  answers  that  he  is  inter- 
ested in  the  said  action  adversely  to  the  plaintiff,3  but  the  court 
overruled  the  plaintiff's  challenge,  to  which  ruling  the  plaintiff 
at  the  time  excepted,  and  the  said  Doe  was  sworn  and  served 
as  a  juror.  That  the  foregoing  questions  and  answers  com- 
prise all  the  questions  asked  and  all  the  answers  made  by  said 
Doe,  and  that  no   other  or  further  statements  were  made  by 

1  It  is  the  safer  course  to   state  the  fendant  filed  his  bill  of  exceptions  on 

time  of  filing,  as  it  is  necessary  to  iden-  the  ruling  denying  his  motion  to  make 

tily  the  instrument.     Ante,  §§  817,  818,  the  complaint  more  specific. 

But  the  practice  does  not  seem  to  The  bill  of  exceptions  is  required  to 

1  nd  so  much  strictness.  be  filed  within  the  time   fixed  by  the 

8  Entry  of  filing:     On   this day  court. 

of .  being  the judicial  day  of  3  The    specific    ground    of    challenge 

the   term   of  the court,    the  de-  iTin-t  be  stated.     Ante,  §  77S. 


FORM  ED  IN   TRIAL  PRACTICE.  803 

him.1     And  now  on  the  day  and  yeai  above  written  the  plaint- 
iff presents  to  the  judge  of  the   said  court  this  bill  of 

exceptions   which    is    signed,    sealed,    and    made    part    of    tin- 
record  . 

§  867.  Bill  of  Exceptions  on  the  Overruling  of  a  Motion  for  Sen 
Trial. 

Be  it  remembered  that  on  the  trial  of  the  above  entitled 
cause  and  before  the  jury  were  examined  the  defendant  moved 
the  court  to  permit  him  to  open  and  close  the  case,  and  in  sup- 
port of  his  motion  stated  to  the  court  that  the  burden  of  the 
issue,  as  shown  by  the  pleadings,  was  upon  him,  but  the  court 
refused  to  permit  him  to  open  and  close  the  case,  but  ruled  that 
the  plaintiff  was  entitled  to  open  and  close,  and  the  defendant 
at  the  time  excepted  to  said  ruling.  Thereupon  the  plaintiff 
introduced  as  a  witness  one  John  Doe,  and  the  said  witness 
was  asked  the  following  question  by  plaintiff's  counsel  {set forth 
the  question),  to  which  question  the  defendant  at  the  time  ob- 
jected and  stated  to  the  court  the  following  grounds  of  objec- 
tion, to  wit:  i.  That  the  question  calls  upon  the  witness  to 
testify  as  to  the  contents  of  a  contract  which  the  complaint  of 
the  plaintiff  shows  to  be  in  writing.  2.  That  the  question  asks 
for  oral  evidence  of  the  contents  of  a  written  instrument  con- 
stituting the  contract  between  the  parties.  But  the  court  over- 
ruled the  defendant's  objection,  to  which  ruling  he  excepted  at 
the  time,  and  the  said  John  Doe  answered  said  question  as 
follows  :  {Here  set  forth  the  answer.)  That  the  plaintiff  intro- 
duced as  a  witness  Robert  Roe,  and  propounded  to  him  the  fol- 
lowing question  {here  set  forth  the  question)  ;  that  the  witness  gave 
the  following  answer  {set  forth  the  answer),  which  the  defendant 
moved  the  court  to  strike  out,  and  stated  to  the  court  the  following 
reasons  on  support  of  his  motion:  1.  That  the  answer  of  the 
witness  show's  that  he  does  not  speak  as  to  matters  within  his  own 
knowledge,  but  has  repeated  what  was  said  to  him  by  Thomas 
Noakes,  a  stranger  to  the  parties  herein.  2.  That  the  answer 
of  the  witness  shows  that  he  is  giving  mere  hearsay  testimony. 

1  The  entire  examination  of  the  chal-  anapolis,  etc.,  Co.  v.  Pitzer,  109  Ind. 
lenged  juror  must  be  set  forth.     Indi-     179;    Johnson  v.  rlolliday,  79  Ind.  151. 


804  FORMS. 

Jiui  the  court  overruled  the  defendant's  motion  to  strike  out  the 
foregoing  answer  of  said  Roe,  to  which  ruling  the  defendant 
at  the  time  excepted.  The  plaintiff  also  gave  the  following 
evidence,  the  written  contract  set  forth  in  the  cornplaint  {here  in- 
sert), and  also  introduced  the  witnesses  named,  who  testified  as 
follows  :  {J fere  set  forth  the  names  of  the  witnesses  and  the  tes- 
timony of  each.)  That  the  plaintiff  rested,  whereupon  the  de- 
fendant introduced  the  following  evidence:  {I/ere  set  forth 
defendant's  evidence.)  And  this  was  all  the  evidence  given  in 
the  cause.  That,  before  the  beginning  of  the  argument,  the 
defendant  requested  the  court  to  instruct  the  jury  in  writing, 
and  in  writing  requested  the  court  to  give  instructions  num- 
bered one,  two  and  three  [here  insert  request  and  instructions  of 
the  defendant),  that  the  court  refused  to  give  each  and  all  of 
the  said  instructions  to  which  the  defendant  at  the  time  ex- 
cepted. That  the  court  gave  to  the  jury  the  following  in- 
structions {here  insert  instructions  of  the  court),  to  the  giving 
of  each  of  which  the  defendant  at  the  time  excepted.  That 
the  aforesaid  instructions  so  given  by  the  court  were  duly  filed 
and  were  all  the  instructions  given  in  the  cause.     That  on  the 

day  of ,  1892,  the  defendant  filed  a  motion  for  new 

trial  which  was  by  the  court  overruled,  to  which  the  defendant 
at  the  time  excepted,  and  prayed  the  court  to  grant  him  sixty 
days1  in  which  to  file  a  bill  of  exceptions,  which  request  was 
granted  by  the  court. 

That  on  the day  of ,  1892,  the  defendant  pre- 
sented to  the  Honorable ,  sole  judge  of  the  said 

court  this,  his  bill  of  exceptions.2 

And  now  on  the day  of ,  being  within  the  time 

heretofore  granted,  this  bill  is  signed,  sealed  and  made  part  of 
the  record. 

1  The  record  independently  of  the  bill  granted,  but  this  statement  can  not  sup- 
must  show  that  time  was  granted  in  ply  the  place  of  a  statement  of  the  date. 
which  to  file  it.  Ante,  §§  Soo,  Soi.  It  a  The  bill  on  its  face  must  show  its 
is  proper  and  usual,  although  not  in  presentation  to  the  judge.  Ante,  §802. 
itself  sufficient,  to  state  generally  that  The  bill  must  be  filed,  but  the  date  of 
the  bill  was  presented  within  the  time  its  presentation  to  the  judge  is  the  im- 
portant element.     Ante,  $  S05. 


FORMS   USED  IN   TRIAL  PRACTICE. 

§  868.   Misconduct  of  Jurors — Bill  of  Exceptions. 

Be  it  remembered  that  on  the day  of the  plaint- 
iff mov*!d  the  court  for  a  new  trial  for  the  reason,  as  therein 
specified,  that  John  Doe,  one  of  the  jurors  impanneled  to  try 
said  cause,  was  guilt)'  of  misconduct,  in  that  he,  the  said  juror, 
went  in  company  with  the  plaintiff  to  a  dram  seller's  shop  and 
there  drank  intoxicating  liquors  with  and  at  the  expense  of  the 
defendant,  and  then  and  there  promised  the  defendant  to  re- 
turn a  verdict  in  the  defendant's  favor.  That  the  plaintiff  in 
support  of  his  motion  filed  and  read  to  the  court  his  own  affi- 
davit, and  the  affidavits  of  John  Smith  and  Robert  Roe  (Acre 
insert  affidavits),  that  the  defendant  filed  and  submitted  to  the 
court  his  own  affidavit  and  the  affidavit  of  John  "Doe  (here  insert 
affidavit).  That  no  other  affidavits  were  filed  or  submitted  and 
that  no  other  evidence  was  heard  or  given  upon  said  motion. 
That  the  plaintiff's  motion  was  overruled,  to  which  he  at  the 
time  excepted,  on  the day  of ,  18 — . 

And  now  on  the  day  last  named  this  bill  of  exceptions  is 
signed,  sealed  and  made  part  of  the  record. 

§  869.   Appeal  in  Term — Record  Entry.1 

Come  now  the  parties  by  their  attorneys  and  the  court  over- 
rules the  motion  of  the  defendant  for  a  new  trial,  to  which  rul- 
ing the  defendant  at  the  time  excepts.  And  the  said  defendant 
prays  an  appeal  to  the  Supreme  Court  of  the  State  and  prays 
that  the  court  fix  the  penalty  of  the  appeal  bond,  name  the 
sureties  therein  and  fix  the  time  in  which  the  appeal  bond  shall 
be  filed,  and  the  court  grants  the  prayer  of  the  defendant  and 
does  order  that  A.  and  B.  (naming  sureties),  shall  be  sureties  on 

the  appeal    bond,  that  the  penalty  of  the  bond  shall  be  

dollars,  and  that  the  defendant  be  and  is  hereby  allowed  thirty 

days  in  which  to  file  the  appeal  bond.     And  now  on  the  

day  of comes   the   defendant  and  files  his  appeal   bond, 

properly  conditioned,  in  the  penalty  of ,  with  A.  and  B. 

(name   sureties)   as    sureties    therein,    which   bond    reads    thus 
(here  insert  bona),  and  the  said  bond  is  approved  by  the  court. 

1  Ante,  ssss  246,  247,  24&  H  is  ex-  (Sup.  Ct.  Ind.,  March  31,  189J), that  a 
press.lv  decided  in  Sweeney,  Ex  parte    bond  is  essential  t  1  the  appeal. 


806  FORMS. 

§  870.   Appeal  Bond. 

Know  all   men  by   these  presents,   That  we are  held 

and  firmly  bound  unto in  the  penal  sum  of dol- 
lars, to  the  payment  of  which,  well  and  truly  to  be  made, 
we  bind  ourselves,  our  heirs,  executors,  administrators  and 
assigns,  jointly  and  severally,  firmly  by  these  presents. 
Sealed  with  our  seals  and  dated  this day  of ,  18 — . 

The  condition  of  the  above  obligation  is  such,  that  whereas, 

heretofore,  to  wit :    on  the day  of ,   18 — ,   the  said 

in  the Court,  recovered  a  judgment  against  the 

said for  the  sum  of dollars,  in  damages  and  costs 

of  suit ;  from  which  said  judgment  of  said Court,  the 

said has  taken  an  appeal  to  the  Supreme  Court  of  Indiana. 

Now   if  the  said shall  well  and  truly  prosecute  said 

appeal,  and  abide  by  and  pay  the  judgment  and  costs,  which 

may  be  rendered  or  affirmed  against ,'  then  the  above 

obligation  shall  be  null  and  void  ;  otherwise  to  be  and  remain  in 

full  force  and  virtue  in  law.  [Seal.] 

[Seal.] 

[Seal.] 

Approved ,  18 — 

,  Clerk. 

§  871.   Appeal  after  Term — Notice  Below  to  Party. 

The  plaintiff  in  the  above  entitled  cause  hereb}r  gives  notice 
to  the  defendant  in  said  cause  that  he,  the  plaintiff,  will  appeal 
to  the  Supreme  Court  of  the  State  of  Indiana,  from  the  judg- 
ment rendered  against  him   in   said  cause  on  the day  of 

,  1 8 — ,  by  said Court. 

1  If  the  action  concerns  the  possession  lates  to  the  possession  of  personal  prop- 
of  land  and  the  appellant   desires  to  re-  city,  the  following  provision  should  be 
tain  possession,  the  following  provision  written  in  the  bond  at  the  place  indi- 
should   be  written  in  the  bond  at  the  cated  by  the  figure  i, "  and  shall  also  de- 
indicated  by  the  figure  i , "and  shall     liver   or   return   to   the  said the 

also  pay  all  damages  which  may  be  sus-  personal  property  described  in  the  plead- 

tained  by  the  said  for  the  mesne  ings   in   the  above  entitled  cause,  and 

profits,  for  waste,  or  for  damages  to  the  shall    pay    the    reasonable  value   of  its 

land  described    in   the    pleadings  in    the  use    and    any    damages    it  may   sustain 

above  entitled  cause  during  the  pend-  during  the  pendency  of  the  said  appeal." 

ency  of  said  appeal."     If  the  action  re-  See  Ante.  >S§  360,  3S3. 


FORMS   USED    IN    TRIAL  PRACTK   E 

§  872.   Appeal  alter  Term— Notice  to  Hie  Clerk.1 

To  the  clerk  of  the court.     The  plaintiff  in  the  above 

entitled  cause  hereby  noli  lies  you  that  he  will  appeal  to  the 
Supreme  Court  of  the  State  of  Indiana  from  the  judgment  ren- 
dered against  him  in  said  cause  on  the day  of ,  l8 — . 

§  873.   Precipe  for  Transcript. 

To  the  clerk  of court :  The  defendant  requests  you  to 

prepare  and  properly  certify,  for  use  on  appeal  to  the  Supreme 
Court  of  Indiana,  a  transcript  of  the  following  papers,  orders 
and  proceedings  filed  and  had  in  the  above  entitled  cause,  i. 
The  complaint,  answer  and  reply.     2.    The  defendant's  motion 

for  a  new  trial,  filed  on  the  day  of ,  18 — .     3.    The 

bill  of  exceptions,  filed  on  the day  of ,18 — .     4.    All 

orders,  rulings  and  exceptions  made  and  taken  in  said  cause, 
and  the  judgment  therein  rendered.2 

§874.   Notice  to  Co-Party. 

To  {flaming  him).  You  are  hereby  notified  that  the  under- 
signed   will  appeal  the  above  entitled  cause  to  the  Su- 
preme Court  of  Indiana  from  the  judgment  therein  rendered  on 

the  day  of  ,  and   you  are  notified  to  join  in  said 

appeal  or  to  decline  so  to  do. 

§  875.   Transcript— Formal  Parts — Commencement. 

Be  it  remembered  that  heretofore,  to  wit,  on  the day  of 

-,  18 — ,  the  plaintiff,  by .  his  attorney,  tiled  in  the 


office   of  the  clerk  of  -  court   the   following  complaint, 

namely 


1  Ante,  §§  :=;o.  251.  tion  i-  given  it  may  be  thus  expn 

2  Ante,  §  200.  If  a  transcript  of  the  The  clerk  i-  directed  to  prepare  and 
entire  record  is  desired,  a  general  direc-  certify  tor  use  on  appeal  to  the  Supreme 
tion  is  all  that  need  he  given,  and  where  Court  a  transcript  of  all  papers  tiled  in 
there  is  no  specification  it  is  the  duty  said  cause,  all  order-  and  rulings,  and 
of  the  clerk  to  certify  up  a  transcript  ol  the  judgment  therein  rendered. 

the  entire  record.     If  a  general  direc- 


808  FORMS. 

§  876.  Transcript— Certificate  of  Clerk  where  Entire  Record  is 
Ordered. 

I,  ,  clerk  of  the* court  of  Indiana,  do  hereby 

certify  that  the  above  and  foregoing  transcript  contains  full, 
true  and  complete  copies  of  all  the  papers  and  entries  in  said 
cause.1 

§  877.   Transcript — Certificate  where  Special  Directions  are  Given. 

I, ,  clerk  of  the  court  of  Indiana,   do  hereby 

certify  that  the  above  and  foregoing  transcript  contains  true, 
full  and  complete  copies  of  the  complaint,  answer  and  reply, 
the  motion  for  a  new  trial,  the  bill  of  exceptions,  all  orders  and 
rulings,  entries  and  exceptions  made  and  taken  in  said  cause, 
in  accordance  with  the  written  request  of  the  defendant  (nam- 
ing-hm)  hereto  attached.2 

1  Houston  v.  Reid,  49  Ind.  1S1.  It  is,  2  Ante,  §§  200  to  202,  inclusive.  The 
of  course,  implied  that  signature  and  frcecipe  must  be  attached  to  the  tran- 
seal  shall  be  appropriately  affixed.  script. 


CHAPTER    II. 

FORMS  USED  IN    APPELLATE  PRACTICE. 

§  S7S.   The  assignment  of  errors — Or-  §  8S5.    Assignment  of  cross-errors. 

dinarv  form.  886.    Petition   for   certiorari — Omis- 

S79.    The  assignment  of  errors — Ap-  sion  of  parts  of  record. 

peal  from  the  Marion  Superior  8S7.    Petition  for  certiorari — Change 

Court.  of  record  by  nunc  pro  tunc  en- 

850.  Failure    to    notify    co-parties —  try. 

Motion  to  dismiss.  8S8.    Petition  to  advance — Matter  of 

851.  Acceptance  of  payment  of  judg-  public  interest. 

ment — Motion  to  dismiss.  SSg.    Petition  to  advance — Matter  of 

852.  Failure    to    perfect    the    appeal  private  concern. 

within   the  time  prescribed —  S90.  Motion  to  vacate  supersedeas. 

Motion  to  dismiss.  891.  Notice  of  motion. 

553.  Common  joinder.  892.  Motion  to  reinstate. 

554.  Application  for  leave  to  amend  S93.  Petition  for  rehearing. 

the  assignment  of  errors.  S94.    Motion  to  modify  mandate. 

§  878.   The  Assignment  of  Errors — Ordinary  Form. 

John  Doe,  Appellant,       -\ 
v.  I 

Richard  Roe  f*  ^n  tne  Supreme  Court  of  Indiana. 

John  Noakes,  Appellees.'  J 

The  appellant  avers  that  there  is  error  in  the  proceedings 
and  judgment  in  said  cause,  in  this : 

First.  The  complaint  of  the  appellees  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action. 

Second.  The  court  erred  in  overruling  the  demurrer  of  the 
appellant  to  the  second  paragraph  of  the  complaint.3 

Third.  The  court  erred  in  sustaining  the  demurrer  of  the 
appellees  to  the  second  paragraph  of  the  appellant's  answer. 

Fourth.    The  court  erred  in  overruling  the  appellant's  motion 

1  We  have  given  the  caption  of  the  of  directing  attention  to  the  rule  that 

assignment  of  errors  for  the  reason  that  the  appellants  and  appellees  must  all  be 

it  shows  the  proper  arrangement  of  the  named.     Ante,  §§  ^22.  323. 

names  of  the  parties,  and  for  the  purpose  •  Ante,  §§  471,  472,  473.  474. 

(809) 


810  FROMS. 

to  compel  the  appellees  to  answer  the  interrogatories  pro- 
pounded to  them. 

Fifth.  The  court  erred  in  the  conclusions  of  law  stated  upon 
the  special  finding  of  facts. 

Sixth.  The  court  erred  in  overruling  the  appellant's  motion 
for  a  new  trial. 

Seventh.  The  court  erred  in  overruling  the  appellant's  mo- 
tion for  a  veni7'e  de  novo. 

Eighth.  The  court  erred  in  overruling  the  appellant's  motion 
to  modify  the  decree  and  judgment. 

Wherefore  the  appellant  prays  that  the  judgment  be  reversed. 

§  879.  Appeal  from  the  Marion  Superior  Court— Assignment  of 
Errors. 

The  appellant  says  there  is  error  in  the  proceedings  and 
judgment  in  this  cause,  in  this,  to  wit :  The  Marion  Superior 
Court  in  general  term  erred  in  reversing  the  judgment  of  the 
court  in  special  term.1 

§  880.   Failure  to  Notify  Co-Parties— Motion  to  Dismiss. 

The  appellee  in  the  above  entitled  cause  moves  to  dismiss 
the  appeal  of  the  appellants  and  for  cause  assigns, 

That  John  Doe  is  a  co-party  of  the  appellants  in  the  judg- 
ment from  which  this  appeal  is  prosecuted,  and  no  notice  has 
been  served  upon  him  nor  has  he  joined  in  the  appeal.  That 
the  action  wherein  the  judgment  appealed  from  was  rendered 
was  brought  by  the  appellee  to  recover  the  possession  of  real 
estate,  that  the  appellants  and  John  Doe  were  parties  to  said 
action,  that  the  trial  court  found  the  facts  specially,  that  the 
said  court  stated  in  its  finding  that  the  defendants  were  in  pos- 
session of  the  land,  claiming  title  adversely  to  the  appellee, 
that  it  was  adjudged  by  said  court  that  the  defendants  had  no 
title  to  said  land  and  that  their  possession  was  wrongful.2 

1  Ante,  §   310.     Gutperle  v.  Koehler,  and  the  form  of  such  an  assignment  is 

84    Ind.    237;    Iladk-v    v.    Milligan,    100  substantially    the   same  as  that  on  ap- 

Ind.  249.      I'h.   assignment  of  errors  in  peal  to  the  Supreme  Court  or  the  Ap- 

eneral    term   on    :  1  j > j > «.- ;  1 1   from  the  pellate  Court. 

special   terra    must   particularly  specify  2  Ante,  §§  139,  145,  inclusive. 
the  rulings  upon  which  error  i-.  aliened, 


FORMS   USED   IN  APPELLATE   PRACTICE.  811 

§  881.   Acceptance  of  Payment  of  Judgment — Motion  to  Dismiss. 

The  appellee  moves  the  court  to  dismiss  the  appeal  of  the 
appellant  and,  upon  oath,  deposeth  :     That  heretofore,  to  wit, 

on  the day  of the   appellee   paid   to   the   appellant 

the  sum  of dollars,  in   satisfaction  of  the  judgment  from 

which  the  appeal  is  prosecuted,  and  the  appellant  accepted  the 
said  sum  in  full  payment  and  satisfaction  of  said  judgment.1 

Subscribed   and  sworn  to  before  me  this day  of , 

1 8— .  . 

§  882.  Failure  to  Perfect  the  Appeal  within  the  Time  Prescribed 
— Motion  to  Dismiss. 

The  appellee  moves  the  court  to  dismiss  the  appeal  of  the 
appellant,  and  for  cause  shows :  That  the  final  judgment  from 
which  the  appeal  is  prosecuted  was  rendered  and  entered   on 

the day  of. ,  and  that  the  appeal  was  not  taken  until 

the day  of ,  more  than  one  year  after  the  rendition 

and  entry  of  judgment.2 

§  883.   Common  Joinder. 

The  appellee  says  there  is  no  error  in  the  proceedings  or 
judgment  in  the  above  entitled  cause. 

§  884.   Application  for  Leave  to  Amend  the  Assignment  of  Errors. 

The  appellant  represents  to  the  court  that  at  the  time  his 
counsel  wrote  the  assignment  of  errors  herein  they  omitted  to 
name  A.  B.  and  C.  D.  as  appellees  ;  that  the  omission  to  name 
said  parties  was  owing  to  the  fact  that  counsel  were  misled  by 
the  mistake  of  the  clerk  of  the  trial  court  in  omitting  to  state 
the  names  of  said  A.  B.  and  C.  D.  in  the  introductory  part  of 
the  transcript. 

Wherefore  appellant  prays  that  he  may  be  permitted  to 
amend  his  assignment  of  errors.3 

§  885.   Assignment  of  Cross-Errors. 

The  appellee  in  the  above  entitled  cause  assigns  cross-errors 
and  avers  that : 

1  Ante,  ^  150,  151,  152,  410  to  412.  in-         2  §$  5:4.  53a,  533. 
elusive.  s  Ante,  §  353. 


812  FORMS. 

First.  The  court  erred  in  overruling  his  demurrer  to  the  ap- 
pellant's complaint. 

Second.  The  court  erred  in  sustaining  the  appellant's  de- 
murrer to  the  third  paragraph  of  the  appellee's  answer. 

Third.  The  court  erred  in  overruling  the  appellee's  motion 
to  modify  the  judgment. 

§  886.   Petition  for  Certiorari — Omission  of  Parts  of  Record. 

The  appellant  respectfully  represents  to  the  court  that  the 
transcript  certified  up  by  the  clerk  of  the  court  is  incor- 
rect and  incomplete  in  this,  to  wit : 

i.  The  demurrer  of  the  appellant  to  the  second  paragraph 
of  the  appellee's  answer  is  omitted  from  the  transcript. 

2.  The  clause,  written  in  the  bill  of  exceptions,  "And  this 
was  all  the  evidence  given  in  the  cause,"  is  omitted  from  the 
copy  of  the  bill  in  the  transcript. 

Wherefore  the  appellant  prays  that  an  order  be  issued  to  the 

clerk  of  the court  commanding  him  to  make  and  certify 

to  this  court  the  demurrer  to  the  second  paragraph  of  the  ap- 
pellee's answer,  and  the  entries  relating  thereto,  and  the  clause 
omitted  from  the  bill  of  exceptions.1 

§  887.  Petition  for  Certiorari— Change  of  Record  by  Nunc  pro  tunc 
Entry. 

The  appellant  shows  to  the  court :     That  the  record  in  the 

court  has  been  corrected  by  an  order  of  said  court  in 

this,  to  wit,  by  changing  the  entry  in  the  order  book  of  said 

court  so  as  to  show  that  the  demurrer  of  the  appellant  to 

the  second  paragraph  of  the  appellee's  answer  was  overruled. 

Wherefore  the  appellant  prays  that  the  clerk  of  said 

court  be  ordered  to  certify  to  this  court  a  transcript  of  the 
order  aforesaid  and  all  the  proceedings  relating  thereto.2 

§  888.    Petition  to  Advance— Matter  of  Public  Interest. 

The  appellant  represents  to  the  court  that  the  controversy  in 

the  above  entitled  cause  concerns  the  right  of  the  town  of 

to  levy  and  collect  taxes  ;  that  the  appellees  resisted  the  right 

1  Petition  should   be  verified.     Ante,         7  Ante,  §§  209  to  220,  inclusive. 

§   220. 


FORMS   USED  IN   APPELLATE   PRACTICE.  813 

of  said  town  to  collect  taxes  upon  the  ground   that  the  act  of 

,   under   which   the   taxes  were  assessed,  is  invalid,  and 

that  the  court  below  so  adjudged.     Your  petitioner  further  rep- 
resents that  the   case  is  one  of  public   interest,  and  that  many 
cases  depend  upon  the  decision  that  shall  be  herein  given. 
Wherefore  the  appellant  prays  that  the  cause  be  advanced.1 

§  889.   Petition  to  Advance— Matter  of  Private  Concern 

The  appellant  represents  to  the  court  that  the  suit  wherein 
the  judgment  was  rendered  was  brought  by  the  appellee  to 
foreclose  a  mortgage  ;  that  the  appellant  filed  therein  a  cross- 
complaint  asserting  that  a  judgment  owned  by  him  was  a  prior 
lien  on  the  land  described  in  the  mortgage  ;  that  the  court,  upon 
the  hearing,  found  against  the  appellant,  and,  in  the  final  de- 
cree, adjudged  that  his  lien  was  subordinate  to  that  of  the  ap- 
pellee. The  appellant  further  represents  that  if  this  court 
should  affirm  the  judgment  of  the  trial  court,  he  desires  to  re- 
deem from  the  sale  made  upon  the  appellee's  decree  as  a 
junior  lien  holder,  and  is  able  and  ready  so  to  do,  but  that  if 
the  judgment  is  reversed  his  lien  will  be  entitled  to  priority. 
The   appellant  also  represents  that  the  sale  was   made  on  the 

day  of upon  the  decree,  and  a  certificate  issued  by 

the  sheriff  to  the  appellee  ;  that  the  year  allowed  by  law  for  re- 
demption will   expire   on   the day  of  ;  that  unless 

this  cause  is  advanced  the  decision  can  not  be  rendered  in  time 
to  permit  the  appellant  to  redeem  as  a  junior  incumbrancer  in 
the  event  that  the  judgment  should  be  affirmed. 

Wherefore  he  prays  that  the  cause  may  be  advanced.2 

§  890.   Motion  to  Vacate  Supersedeas. 

The  appellee  moves  the  court  to  vacate  the  order  of  super- 
sedeas herein  issued  and  for  cause  shows  : 

First.  That  the  sureties  in  said  bond  are  wholly  and  notori- 
ously insolvent,  and  that  neither  of  them  is  the  owner  of  any 
property  subject  to  execution.3 

1  The  petition  must  be  verified.     See  is  approved  below  it   must  appear  that 

ante,  §$  463  to  469,  inclusive.  the     sureties     have     become     insolvent 

1  Ante,  §  463.  sinee    the  order  of   the  trial  court  ap- 

%  Ante,  §$  399,  400.     Where  the  bond  proving  the  bond.     Ante,  $$  36C,  367. 


iSl4  FORMS. 

Second.  That  the  bond  is  insufficient  in  form  and  substance 
for  the  reason  that  it  does  not  contain  a  promise  to  pay  the 
judgment  from  which  the  appeal  is  prosecuted.1 

§  891.    Notice  of  Motion. 

The  appellee  hereby  notifies  the  appellant  that  he  has  filed  a 
motion  to  dismiss  the  appeal,  upon  the  ground  that  the  appel- 
lant has  received  and  accepted  full  payment  of  the  judgment 
from  which  the  appeal  is  prosecuted.     The  appellant  is  further 

notified  that  the  motion  will  be  heard  on  the day  of 

or  as  soon  thereafter  as  the  court  may  deem  proper.2 

§  892.   Motion  to  Reinstate. 

The  appellant  moves  the  court  to  vacate  the  order  dismissing 
the  appeal  in  the  above  entitled  cause  and  to  reinstate  the 
same.  The  appellant  shows  that  the  day  after  said  cause  was 
submitted,  his  attorney,  A.  B.,  was  prostrated  by  illness  and 
was  unable  to  give  any  attention  to  business  for  more  than  sixty 
da  vs.  That  because  of  the  illness  of  A.  B.,  a  brief  was  not  filed 
within  the  time  prescribed  by  the  rules  of  court,  and  that  the 
appellant  did  not  know  of  the  requirement  of  said  rules,  but 
relied  wholly  upon  his  attorney.  The  appellant  further  shows 
that  he  believes  that  there  is  merit  in  his  appeal,  and  that  it 
was  taken  and  prosecuted  in  good  faith  and  upon  the  advice 
and  belief  that  he  is  entitled  to  a  judgment  of  reversal.3 

§  893.   Petition  for  Rehearing. 

The  appellant  petitions  the  court  to  grant  a  rehearing  in  the 
above  entitled  cause  He  respectfully  represents  that  the  court 
in  its  opinion  and  decision  erred  upon  the  following  points,4 
to  wit : 

First.  In  holding  that  the  contract  sued  on  by  the  appellee 
is  not  within  the  statute  of  frauds. 

Second.  In  holding  bad  the  answer  of  the  appellant  plead- 
ing the  statute  of  limitations  to  the  second  paragraph  of  the 
appellee's  complaint. 

1  Ante,  ')>;  365,  378,  397.  of  course,  be  varied  to  conform  to  the 

"Ante,    §§    532.    533.     We    ^ive    one     particular  instance, 
form  of  notice  of  motion.     Forms  must,         3  Ante,  §§  537  to  540,  inclusive. 

4  Ante,  $  555. 


FORMS  USED   IN   APPELLATE   PRACTK  >  1 ;, 

Third.  In  holding  that  the  bill  of  exceptions  taken  by  the 
appellant  is  not  in  the  record. 

Fourth.  In  refusing  to  consider  the  appellant's  motion  to 
modify  the  judgment.1 

§  894.   Motion  to  Modify  Mandate. 

The  appellant  moves  the  court  to  modify  or  change  the  man- 
date, in  this,  to  wit : 

That  the  mandate  be  so  changed  as  to  direct  the  trial  court 
to  re-state  its  conclusions  of  law  and  enter  judgment  thereon, 
as  re-stated,  in  favor  of  the  appellant. 

In  support  of  this  motion  the  appellant  shows  : 

i.  That  upon  the  facts  stated  in  the  special  finding  the  ap- 
pellant is  entitled  to  judgment. 

2.  That  the  facts  contained  in  the  special  finding  show  that 
there  is  no  ground  or  reason  for  directing  a  new  trial,  and  that 
the  appellant  is  entitled  to  have  judgment  pronounced  upon  the 
facts.2 

1  The  form  here  given  is  proper  where  ing  a  great  variety  of  forms,  and  we 

a  full  brief  is  filed,  if  no  brief  is  filed  the  have  not  attempted  to  do  more  than 

petition    must  discuss   questions  fully,  give  such  forms   as  will   suggest  those 

Ante,  Chapter  XXVIII.  appropriate  to  particular  cases. 

'  Lack  of  space  prevents  us  from  giv- 


INDEX. 

[References  are  to  Sections.] 

A 

ABATEMENT, 

is  not  caused  by  death  of  party  after  appeal  is  taken,  166,  167. 
of  appeal  where  cause  of  action  does  not  survive,  169. 

ACCIDENT, 

relief  against,  when  appeal  may  be  allowed  after  statutory  time,  112, 
may  be  ground  for  allowing  assignment  of  errors  to  be  filed  after  time,  304. 
or  surprise,  as  ground  for  new  trial,  S52. 
motion  for  new  trial  on  ground  of,  must  be  supported  by  affidavit,  S^q. 

ADMINISTRATOR, 

may  appeal,  133,  137. 

substitution  of,  137. 

should  unite  with  heirs  in  appeal,  when,  16S. 

ADVANCEMENT    OF    APPEALED    CASES, 
authority  of  court  to  order,  462. 
(         good  cause  must  be  shown  for,  463. 

can  not  be  had  by  mere  agreement  of  parties,  464. 

application  for,  465. 

submission  must  precede,  466.  . 

notice  of  application  for,  467. 

hearing  of  motion  for,  46S. 

questions  for  decision  on  motion  for,  469. 

tbrms  of  petitions  for,  S8S,  SS9. 

AFFIDAVIT, 

for  publication  of  notice,  1S3. 

for  certiorari,  220,  221. 

in  agreed  case,  22}.  227. 

in  support  of  motion  in  bar  of  appeal.  411. 

in  support  of  motion  to  reinstate  appeal,  540. 

going  to  trial  011  merits  without  objection  waive-  right  to  require,  084. 

may  be  filed  now  for  then,  693. 

must  generally  he  made  part  of  record  bv  bill  oi  exeeptions,  S17,  and  n.  : 

on  p.  769. 
for  attachment,  new  trial  a-  to  i-sue  upon.  844. 

52  (817) 


818 


INDIA 


[References  are  to  Sections.] 
AFFIDAVIT— continued. 

where  new  trial  is  sought  on  ground  of  newly  discovered  evidence,  857-859. 

counter,  admissible  on  question  of  diligence,  S58. 

in  support  of  motion  for  new  trial  on  ground  of  misconduct,  accident  or 

surprise,  859. 
in  agreed  ca6e,  861  and  note  3. 

AGREED    CASE, 

jurisdiction  of,  affidavit  is  essential  to,  223,  227. 

differs  from  agreed  statement  of  facts,  -24. 

pleadings  are  not  required,  224,  225. 

motion  for  new  trial  is  not  necessary.  224,  225. 

parties  acting  upon  theory  of,  will  be  held  to  it  on  appeal,  224. 

distinctive  features  of,  225,  226. 

exception  to  decision  is  necessary,  225. 

no  presumption  in  favor  of  trial  court,  226. 

affidavit  must  be  made  by  a  party,  227. 

ultimate  facts  should  be  fully  and  definitely  stated,  228,  229. 

statement  of  facts  is  like  a  special  verdict,  229. 

effect  of  statement,  230. 

mistake  in  statement,  when  and  how  corrected,  231. 

record  in,  232. 

form  of,  S61. 

ALIMONY, 

can  not  be  allowed  by  trial  court  pending  appeal  from  decree  in  divorce 

case,  543. 
AMENDMENT, 

of  proof  of  notice,  185. 

of  record,  206-222,  281. 

where  leave  to  amend  may  precede  assignment  of  errors,  302. 

of  assignment  of  errors,  353. 

of  defective  bond,  377. 

leave  to  amend  defective  bond  must  be  promptly  asked,  379. 

of  pleadings  can  not  be  made  after  case  is  remanded  with  directions  to 

reassess  damages,  576,  n.  3. 
of  pleading  takes  the  old  pleading  out  of  the  record,  and   ruling  thereon 

can  not  be  assigned  as  error,  595,  683. 
of  pleading  is  largely  in  discretion  of  trial  court,  607. 
denying  leave  to  amend  may  be  abuse  of  discretion,  608,  609. 
of  pleadings  after  verdict,   610,  61 1. 
of  pleadings  defective  merely  in  form  will  be  deemed  to  have  been  made 

On  appeal,  64O,  720. 
of  bill  of  exceptions.  825,  S26. 

AMOUNT   1\   CONTROVERSY, 

iffecting  question  of  jurisdiction,  53-61- 


INDEX  819 

[References  are  to  Secti 
AMOUNT  IN  CONTROVERSY— continued. 

how  determined,  56,  59-61. 

effect  of  judgmenl  of  trial  court  upon  the  question,  60. 

interest  after  judgment  not  considered  in  determining,  61. 
effect  of  remittitur  upon,  62. 
effect  of  counter-claim  upon,  63,  64. 

ANSWER. 

to  assignment  of  error,  403-40S. 

what  must  be  specially  pleaded  in  answer  to  assignment  of  errors.  407,  408. 

can  not  be  attacked  for  first  time  on  appeal,  476,  4S0. 

effect  of  proving  a  bad  answer,  4S4-4S6. 

bad,  is  good  enough  for  a  bad  complaint,  627.  n. 

error  in  overruling  demurrer  to  one  of  several  paragraphs  is  prejudicial,  669. 

error  in  sustaining  demurrer  to  one  of  several   paragraphs  may  not  be 

prejudicial,  669. 
waives  demurrer,  6S3. 

APPEAL, 

definition,  15. 

not  allowed  piecemeal,  iS,  n.  3. 

exception  to  rule,  99. 

right  of,  appellate  tribunal  determines,  23 

under  code,  24. 

no  right  to  jury  trial  on,  29,  30. 

is  part  of  remedy  in  which  there  is  no  vested  right,  75,  76,  354,  n.  1. 

what  may  be  appealed  from,  75-110. 

only  judicial  questions  can  be  considered  on,  78. 

time  within  which  it  must  be  taken,  111-130. 

parties,  131-169. 

process,  170-1S5. 

record  and  transcript,  1S6-222. 

upon  instructions,  193. 

from  ruling  on  application  for  nunc  pro  tunc  entry,  214. 

in  civil  actions.  245-253. 

in  matters  connected  with  decedents'  estates,  254-268. 

in  criminal  cases,  269-29S. 

dismissal  of,  376. 

failure  to  take  in  time,  how  question  is  presented,  40S. 

order  of  docketing  and  hearing,  458-469. 

dismissal  and  reinstatement,  519-540. 

effect  of,  541-549. 

objection  that  it  was  prematurely  taken,  when  waived,  6S4. 

in  term,  form  of  entry,  869. 

APPEAL  AFTER  TERM, 

notice  must  he  given,  249,  250. 
no  bond  is  necessary,  250. 


INDEX 


|  A\  /,  rences  are  to  s,  ■  tions.] 
APPEAL   AFTER  TERM— continued. 

how  notice  must  be  issued  and  served,  251. 
form  of  notice,  87  1.  s7-. 

APPEAL   IN   CIVIL   ACTIONS, 
different  modes  of  appeal,  245. 
appeal  in  term,  246. 
requisites  of  appeal  in  term,  246.  247. 
bond  is  essential  to  appeal  in  term,  247,  24S.  869,  n. 
ineffectual  attempt  to  appeal  in  term  will  not  prevent  appeal  thereafter  on 

notice,  249. 
appeal  after  term,  notice  must  be  given,  249,  250. 
no  bond  is  necessary  to  appeal  after  term,  250. 
classes  of  appeal  after  term,  251. 
how  notice  must  be  issued  and  served,  251. 
what  cases  are  appealable  as  civil  actions,  252,  253. 

APPEAL  IX  CRIMINAL  CASES, 
statutory  mode  is  exclusive,  269. 

can  not  be  taken  under  statute  governing  appeals  in  civil  actions,  270. 
classes  of  appeals,  271. 

by  State,  from  what  it  lies,  272,  273,  29S. 
State  can  present  only  epiestions  of  law,  274,  278. 
preparation  of  record,  275. 
bill  of  exceptions,  276. 
exceptions  must  be  taken,  277. 

motion  for  new  trial  unnecessary  on  part  of  State,  277. 
how  questions  of  law  may  arise,  279. 
what  record  must  show  on  behalf  of  State,  2S0. 
def(  ird,  where  certiorari  lies,  2S1. 

notice  of  appeal  by  State,  2S2,  2S3. 
time  within  which  State  must  perfect  appeal,  2^4. 
time  can  not  be  extended  by  agreement,  J"^. 
waiver  of  failure  to  appeal  in  time,  2S5. 

appeal  by  defendant,  2S6. 

time  within  which   defendant  must  appeal,  2S6,  n.  2. 

notice  of  appeal  by  defendant,  286. 

notice  may  be  waived,  2S6. 

what  defendant  must  do  to  perfect  appeal,  287. 

appeal  by  one  of  several  defendants,  288. 

waiver  of  right  of  appeal,  2S9. 

waiver  of  errors,  29O. 

presumptions,  201 . 

record  must  show  prejudicial  error,  292. 

objections  must  be  made  in  trial  court.  293. 

ird  must  exhibit  rulings  complained  of,  294. 
bill  of  exceptions  where  defendant  appeals,  295.  296. 


INDEX.  821 

\Referenccs  are  to  Sections.] 
APPEAL  IN  CRIMINAL  CASES— continued. 

appeal  by  defendant  does  not  vacate  the  judgment,  297. 
effect  of  appeal  by  State,  29S. 

APPEAL  IN   DECEDENTS'  ESTATES  CASES, 

special  statute,  how  far  it  governs,  25  (,  255. 

cases  not  within  the  special  statute,  256. 

cases  which  are  within  the  statute,  257. 

test  for  determining  whether  case  is  within  the  statute,  25S,  260. 

construction  of  the  statute,  259,  260. 

must  be  taken  within  time  prescribed,  261, 

when  time  may  be  extended,  261,  263. 

steps  necessary  to  perfect  appeal,  262. 

steps  necessary  to  secure  extension  of  time,  263,  264. 

notice  of  application  for  extension,  264,  265. 

briefs  on  application,  266. 

bond  must  be  filed  in  time,  267. 

appeal  will  generally  lie  only  from  final  jndgment,  268. 

APPEAL  IN  TERM, 

generally,  246. 

requisites  of,  246,  247. 

bond  is  essential  to,  247,  24S,  S69  n. 

form  of  entry,  869. 

form  of  bond,  S70. 

APPEAL   BOND, 

is  essential  to  appeal  in  term,  246,  248,  S69,  n. 
penalty  must  be  fixed  and  surety  named  during  term,  246. 
must  be  filed  and  approved  in  time,  246,  2  17. 
failure  to  file,  waiver  of,  249,  376. 
is  not  essential  to  appeal  after  term,  250. 

in  cases  involving  matters  connected  with  decedents'  estates,  267. 
power  to  require,  354. 
nature  of,  355. 
is  statutory,  356. 

law  enters  into  as  silent  factor,  356. 
rule  where  there  is  no  jurisdiction,  357. 
is  aided  by  statute,  35S. 
construction  of,  359. 

recovery  is  limited  by  penalty,  360,  3S3. 

where  no  penalty  is  fixed,  liability  is  to  extent  required  by  statute.  56 
interest  which   accrues   subsequent    to   execution  of  bond  may  be  recov- 
ered, 361. 
obligation  of,  362. 
what  constitutes  a  breach,  362.  n.  1. 
mode  of  executing,  363. 
form  and  substance  of,  364. 


INDIA 

[Itcfrri  na  s  are  to  Sections.] 
A  PPEAL  BOND— continued. 

righl  of  appellee  to  require  proper  bond,  365. 

order  of  trial  court   fixing  penalty  and  approving  is  generally  conclusive, 

366. 
new   bond,  where  and  how  demanded.  367. 

ipel  of  sureties,  36S. 
approval  of,  369. 

informal  or  irregular  approval,  370. 
approval  may  be  implied,  371. 
effeel  of  approval,  372. 
evidence  of  filing  and  approval,  373. 
when  essential  to  appeal,  374,  375. 
amendment  of,  377,  379. 

motion  to  dismiss  because  of  failure  to  file,  37S,  527. 
enforcement  of,  380. 
release  of  sureties,  381. 
surety's  right  to  subrogation,  3S2. 
measure  of  recovery,  383. 

objections  to  are  waived  unless  seasonably  made,  684. 
form  of,  S70. 

APPEALABLE    INTEREST, 

what  is,  133-135. 
how  shown,  160. 
dismissal  of  appeal  for  lack  of,  526. 

APPEALABLE  JUDGMENTS    AND    ORDERS, 
final  judgments,  79-81. 

order  directing  issuance  of  an  execution,  85,  n.  1. 
order  setting  aside  commissioner's  sale,  85. 
order  disbarring  attorney,  85. 
order  removing  guardian,  S5. 
judgment  in  action  for  new  trial.  S6. 
judgment  in  suit  to  review,  S7. 
order  refusing  to  set  aside  execution,  88. 
order  removing  cause  to  Federal  Court,  89. 
decree  in  partition,  92,  93. 
judgment  on  demurrer,  94. 
order  dismissing  case,  94. 

de<  ree  on  cross-complaint  of  intervening  creditor,  94. 
judgment  allowing  claim  against  receiver.  99. 
order  authorizing  receiver  to  borrow  money,  99. 
order  appointing  receiver,  100. 
order  refusing  change  of  judge,  100. 
order  for  payment  of  money,  101. 

order  directing  execution  of  written  instrument,  102,  105. 
order  for  delivery  of  property,  103. 
order  requiring  assignment  of  instrument,  104 


[ND 

/,',  /,  rem  i  -  are  to  S>  ctions. 
APPEALABLE  JUDGMENTS   AND  ORDERS— continued. 

order  granting  or  denying  injunction,  io6. 

order  in  habeas  corpus  case,  107. 

void  judgments,  tio. 

what  are  not,  S1-S3.  84  n.  :.  SS  n.  3,  91,  [04. 

See  Interlocutory  Orders. 
APPEARANCE, 

without  objection  operates  as  a  waiver  of  bond.  376. 

may  operate  as  waiver  of  motion  to  dismi.-s  appeal.  519. 

general,  after  a  discontinuance,  operates  as  a  waiver,  677 

general,  waives  objections  to  jurisdiction  of  person,  677. 

general,  when  it  may  be  withdrawn,  677. 

what  is  general  and  what  special,  677. 

special  does  not  waive  objections  to  jurisdiction,  678. 

APPELLANT, 

See  Parties 

APPELLATE  COURT, 

has  appellate  jurisdiction  over  prosecutions  for  misdemeanors,  41. 
inherent  powers  of,  45. 

has  onlv  jurisdiction  taken  from  Supreme  Court,  47. 
has  no  jurisdiction  over  constitutional  questions,  49.  50.  n.  2. 
classes  of  cases  over  which  it  has  jurisdiction.  50. 

jurisdiction  over  actions  originating  before  a  justice  of  the  peace,  51-56. 
when  amount  in  controversy  determines  jurisdiction,  53-64,  55'  n-  '■ 
jurisdiction  in  cases  for  recovery  of  money  only,  57-04. 
amount  in  controversy,  how  determined.  59-64. 
interest  not  considered  in  determining  amount,  61. 
remittitur,  effect  of.  62. 

counter-claim  as  affecting  jurisdiction,  63,  64. 

appellate  jurisdiction  over  actions  for  recovery  of  personal  property.  I 
value  of  property  not  material.  66. 

actions  between  landlord  and   tenant,  when  appellate  court  has  jurisdic- 
tion, 40,  6S,  69. 
appellate  jurisdiction  over  claims  against  decedents'  estate- 
rules  and  practice  of,  71. 

is  bound  by  decisions  of  Supreme  Court.  72. 
transfer  of  cases  to,  73, 
disqualification  of  one  judge  doe-  not  oust  jurisdiction 

APPELLATE  JURISDICTION, 

ultimate  is  in  Supreme  Court,  5,  26. 

definition.  16,  20.  n.  2,  21,  n.  1. 

criterion  of,  16,  n.  4. 

one  of  review,  17. 

appellate  courts  decide  on  their  own.  17,  n.  I,  23. 

obtained  for  one  purpose  i-  retained  for  all.  iS. 


-'-1 


i\  Di:\ 


A\  fen  nces  are  to  Sections.] 
APPELLATE  JURISDICTION— continued. 

incidents  of,  20,  22. 

legal  and  equitable  are  blended  into  one  system,  24. 

territorial  jurisdiction  of  Supreme  Court,  31. 

constitutional  questions,  32,  49. 

cases  in  which  Supreme  Court  has,  35-44- 

cases  in  which  appellate  court  has,  35,  42,43,  47-70. 

must  be  given  by  law  and  not  merely  by  consent,  77. 

jnment  of  errors  is  essential  to,  303. 
bond  is  not  generally  essential  to,  375. 

APPELLATE   TRIBUNALS, 

decide  on  their  own  jurisdiction,  17,  n.  1. 

power  to  frame  judgments,  21. 

power  to  enforce  their  orders  and  writs,  22. 

inherent  powers  of,  45. 

authority  of  decisions  of,  562. 

effect  of  their  decisions,  563. 

See  Appellate  Court;   Supreme  Court. 

APPELLEE, 

See  Parties. 

ARGUMENT, 

application  for  oral,  454. 

limitation  of,  455. 

statement  of  points  for,  456. 

interchange  of  points  for,  457. 

limitation  of  time  allowed  for,  616. 

misconduct  of  counsel  in,  671,  672. 

extent  and  limits  of  what  counsel  may  state,  671,  072. 

presumption  that  court  properly  limited  and  restrained,  725. 

ARREST    OF  JUDGMENT, 

motion  in  cuts  off  motion  for  new  trial,  S34. 

ASSIGNEE, 

may  he  substituted  as  party  to  appeal,  133,  n.  6,  137. 
of  judgment,  rights  and  liabilities  of,  5S2,  n.  2. 

ASSIGNMENT    OF    ERRORS, 

office  and  form  of,  Jo<). 

is  the  appellant's  complaint.  300. 

presents  questions  of  law,  301. 

should  generally  precede  petition  to  amend  record,  302. 

is  essential  to  complete  jurisdiction,  303,  458. 

must  be  filed  within  time  limited  for  taking  appeal,  303,  304,  n.  2. 

leave  to  file  after  time  may  be  granted  in  case  of  fraud  or  accident,  304. 

exceptional  cases  in  which  preliminary  steps  may  precede  assignment,  305. 

specifications  of  error,  306,  401. 


INDEX.  825 

[References  are  to  Sections. 
ASSIGNMENT  OF   ERRORS— continued. 

specific  error  must  be  clearly  designated,  jo6,  n.  2 

statutory  provisions,  307. 

each  specification  must  be  complete  in  itself 

in  cases  appealed  from   Marion  Superior  Court.  310. 

bv  whom  error  must  be  assigned,  311. 

interveners,  312. 

incidental  and  collateral  issues.  313, 

only  injured  parties  c.a\  assign  error,  314. 

privies  may  assign  error,  315. 

can  not  contradict  record,  316. 

favorable  ruling  can  not  be  assigned  as  error.  317. 

joint  assignment  must  generally  be  good  as  to  all,  318,  401. 

exception  to  rule  as  to  joint  assignment  in  case  of  husband  and  wife,  319. 

curing  defects  in,  320. 

correcting  as  to  parties,  321. 

parties  must  be  named,  3:2.  401. 

exceptions  to  rule  requiring  names  of  parties,  323. 

groundwork  of  assignment,  324. 

when  it  may  be  amended,  32^. 

appellant  is  confined  to  the  specific  objections  set  forth,  325. 

specifications  may  be  defective  because  too  general,  326. 

meaning  of  rule  requiring  specific  assignment.  327. 

errors  respecting  jurisdiction  of  person,  how  assigned,  32S. 

defective  trial  court  process,  329. 

application  to  trial  court  where  process  or  service  is  defective.  330. 

distinction  between  cases  where  there  is  no  jurisdiction  and  where  notice 

is  defective,  331. 
where  there  is  no  service.  332. 
writs  running  beyond  term.  333. 
where  judgment  is  rendered  by  default.  334. 
where  judgment  is  rendered  for  failure  to  plead,  335. 
rulings  on  pleadings  generally,  336. 
rulings  on  demurrer.  337. 
interrogatories  to  parties.  33S. 
habeas  corpus  cases.  339. 
identifying  ruli  ilained  of,  540, 

objections  to  mode  of  impaneling  jury,  341. 
rulings  on  verdicts.  342,  343. 
rulings  on  judgments,  344- 
mode  of  objecting  to  judgments.  3  ;;.  3  [6. 
causes  for  new  trial  not  assignable,  347 
independent  specifications.  549,  550 
specifications  as  to  ruling  on  motion  for  new  trial, 
trial  where  issues  of  law  are  undecided.  352. 
amendment  of,   {5  {. 
ill-assigned  errors  are  disregarded  and  demurrer  is  unnecessary,  401,  402. 


826 


[NDEX. 


[References  ar<  to  Sections.] 

ASSIGNMENT  OF  ERRORS— continued. 

cross-errors,  415-424. 

king  complaint  for  firsl  time  on  appeal,  471-475. 
must  be  to  entire  complaint.  474. 
form  of,  S7S,  S79. 

form  of  application  to  amend,  SS4. 
form  of  assignment  of  cross-errors,  8S5. 

ATTACHMENT, 

appeal  will  not  lie  from  order  dissolving  or  refusing  to  dissolve,  Si,  SS,  n. 3. 
can  not  be  discharged  by  trial  court  after  appeal.  543. 
new  trial  as  to  issue  formed  upon  affidavit  for,  S44. 

AUXILIARY   PROCEEDINGS, 

jurisdiction  of  appellate  tribunal  over,  504,  505. 

classes  of,  506. 

appeal  must  generally  be  pending  to  authorize,  507. 

where  no  transcript  has  been  filed,  508. 

application  for  assistance  in  perfecting  appeal,  509. 

injunctions,  510,  512,  513. 

mandamus,  511,  514-517. 


prohibition,  511,  51S. 


See  Certiorari. 


B 


BILL  OF  EXCEPTIONS, 

is  necessary  to  appeal  upon  instructions,  193. 

what  it  should  contain  in  such  case.  193. 

not  necessary  in  agreed  cass,  2^2. 

is  necessary  in  case  of  reserved  questions  of  law,  240. 

office  of,  in  sueh  case,  241. 

what  it  should  contain  in  such  case,  240.  241. 

in  criminal  cases,  276,  296. 

mandamus  will  lie  to  compel  judge  to  settle  and  sign  but  not  to  determine 

just  what  he  shall  put  in  it,  516. 
trial  court  may  grant  time  to  file.  622. 
definition  and  office  of,  717. 
duty  of  settling  is  judicial,  79S,  Sio. 

who  must  sign  it  where  judge  dies  or  goes  out  of  office.  799. 
when  special  judge  should  sign  it.  799. 
time  within  which  it  must  be  signed,  800. 
time  may  be  extended,  but  record  must  show  it.  Soi. 
time  of  presentation  to  judge,  S02. 

time  can  not  usually  he  extended  by  vacation  order  after  term.  S03. 
tiled  in  term,  what  record  must  show.  S04. 
tiled  after  term,  what  record  must  show,  805. 


INDEX  827 

A'.  /.  1 1  nces  are  to  Sections.] 
BILL  OF  EXCEPTIONS— continued. 

form  is  of  little  importance  if  it  is  sufficient  in  substance,  806. 

what  it  should  contain,  generally,  S07. 

several  exceptions  may  be  stated  in  one  bill. 

must  state  tacts  on  which  exceptions  are  based.  S09. 

imports  absolute  verity,  811. 

how  it  may  show  error,  S12. 

rulings  made  in  formation  of  issues,  S13. 

collateral  motions  must  he  brought  into  record  by  bill  of  exceptions.  S14. 

recitals  in   direct  motions  and   exhibits  therewith   must    be  brought    into 

record  by  bill  of  exception-.  815. 
rejected  pleadings  must  be  brought  in  by  bill  of  exceptions.  816. 
instruments  generally,  which  are  not  pleadings,  may  be  brought  in  by  bill 

of  exceptions,  817. 
making  instruments  part  of  bill  by  reference,  81S. 
instruments  once  properly  in  record  need  not  be  copied  in  bill,  S19. 
oral  evidence  must  be  embodied  in  the  bill,  S20. 
stenographer's  report  of  evidence,  bow  made  part  of  bill.  821,  S22. 
where  all  the  evidence  is  necessary,  bill  must  show  that  it  contains  all  the 

evidence  given  in  the  cause.  S23. 
general  recital  as  to  evidence  does  not  always  control.  824. 
amendment  of,  S25.  S26. 
forms  of,  S62-S6S. 

BONA  FIDE  PURCHASERS, 

who  are,  5S2. 

effect  of  judgment  of  reversal  on  rights  of,  5S2. 

BOND, 

is  generally  required  to  secure  stay  of  proceedings,  37  \.  384,  3S6. 
securing  stay  for  one  appellant  gives  no  rights  to  others.  390. 
for  supersedeas,  374.  3S6.  396,  397. 
for  supersedeas,  objections  to  may  be  waived.  6S4. 
presumption  of  approval,  725. 

See    A.PPEAL   BOND  ;     SUPERSEDEAS. 

BRIEFS, 

upon  application  for  extension  of  time  to  appeal.  266. 

upon  application  for  supersedeas,  388. 

definition  of,  43S. 

general  frame  of,  439. 

showing  the  manner  in  which  the  questions  arise. 

should  refer  to  the  record  where  rulings  are  shown.  440 

stating  the  facts.  4)1.  442. 

correcting  erroneous  statements  of  opposite  party,  443, 

making  the  points.  444. 

showing  rulings  to  be  wrong.  445. 

stating  propositions  of  law.  446. 


828  INDEX. 

[References  are  to  Sections.] 
BRIEFS— continued. 

citing  authorities,  447. 

waiver  of  preliminary  motions  by  filing,  44S. 

lime  within  which  appellant  must  file,  449. 

on  cross-errors,  time  for  filing,  450. 

appellee's  brief,  time  for  filing,  451. 

extension  of  time  for  filing,  452. 

interchange  of,  453,  n.  2. 

on  motion  to  reinstate  appeal,  540. 

c 

CERTIFICATE, 

of  clerk  to  transcript,  forms  of,  S76,  877. 

CERTIORARI, 

when  required  to  correct  record,  216. 

dutv  of  counsel  to  apply  for,  but  court  may  order  it  of  its  own  motion,  217 

who  may  obtain,  21 8. 

time  of  making  application  for,  219. 

requisites  of  application,  220. 

notice  of  application,  221. 

submission  and  hearing  of  application,  222. 

to  correct  defective  record  in  criminal  case,  2S1. 

jurisdiction  of  appellate  tribunals  over,  506. 

substituted  pleadings  may  be  brought  into  record  on  appeal  by,  596. 

CHALLENGING  JURORS, 

discretionary  power  of  trial  court,  613. 

objections  must  be  promptly  made,  613,  n.  2. 

where  challenge  for  cause  is  sustained  the  presumption  is  that  the  juror 
was  disqualified,  613,  723. 

presumption  as  to  disqualification  of  person  challenged  and  excused  may- 
be rebutted,  613,  n. 

examination  to  determine  cause  for  challenge  and  expediency  of  per- 
emptory challenge,  613. 

disqualification  from  knowledge  by  rumors,  newspaper  reports  and  by 
prejudice,  614,  n.  2. 

presumption  that  court  allowed  full  number  of  peremptory  challenges,  723. 

objections  must  be  specific,  778. 

form  of  bill  of  exceptions,  866. 

CHANGE    OF    VENUE, 

where  improperly  obtained  by  a  party  he  can  not  avail  himself  of  the 

error,  627. 
error  in  refusing  may  be  cured  by  subsequently  granting  it,  70S. 
when  presumed  to  have  been  waived,  725. 
presumed  to  have  been  rightfully  granted  or  denied,  725. 


INDEX.  829 

[JRi  ferences  arc  to  Sections.] 
CHANGE  OF  VENUE— continued. 

application  and  affidavit   for,  with  ruling  and  exception,  are  brought 

record  by  l>ill  of  exceptions,  Si  7. 
error  in  granting  or  refusing  i^  assignable  as  cause  for  new  trial, 

CIVIL    ACTION, 
definition,  J52. 
modes  of  appeal  in,  245—253. 
what  may  be  appealed  as,  253. 

COLLATERAL    ATTACK, 

when  it  may  he  made  upon  a  judgment,  330,  n.  1,  332 
COLLATERAL    MATTERS, 

when  not  covered  by  appeal,  545. 
COLLATERAL    MOTIONS, 

are  not  part  of  record  proper,  190,  191. 

must  he  brought  into  record  by  bill  of  exceptions  or  special  order,  S14. 

COMPLAINT, 

may  be  attacked  for  first  time  on  appeal.  .(71. 

assignment  of  errors  questions  its  sufficiency,  472,  473,  n.  1. 

what  defects  are  fatal,  473. 

one  good  paragraph  will  save  it  where  it  is  first  attacked  on  appeal,  474. 

assignment   of  errors  on  appeal  can  only  question  complaint  as  a  whole, 

474- 
in  case  of  default,  475. 

CONCLUSIONS  OF   LAW, 

when  defects  in  special  finding  can  not  be  reached  by  exceptions  to,  7 

exceptions  to,  when  proper,  767. 

should  be  excepted  to  at  time,  793. 

can  not  he  questioned  by  motion  for  new  trial,  793. 

how  error  should  he  specified,  794. 

CONSTITUTIONAL  QUESTIONS. 

supreme  court  has  exclusive  appellate  jurisdiction  over,  32,  49. 

how  they  must  appear,  ^- 

when  they  can  he  first  made  on  appeal,  492,  493. 

CONTEST  OF  ELECTIONS. 

appellate  jurisdiction  is  in  Supreme  Court,  44. 
CONTEST  OF   WILLS. 

appellate  jurisdiction  is  in  Supreme  Court,  44. 
CONTINUANCE, 

change  in  ruling  may  entitle  party  to,  696,  697. 

party  entitled  to  it  should  make  the  necessary  request,  I 

error  in  refusing  is  cured  by  subsequently  granting  it.  70S. 


830  [NDEX. 

\References  </>■,■  to  Set  !it>>ts.\ 

CON  T I  N  U  A  N  C  E— continued. 

presumption  that  order  granting  or  denying  was  proper,  ~i^. 
affidavits  for  are  brought  into  record  by  bill  of  exceptions,  S17. 
error  in  grunting  or  refusing  is  assignable  as  cause  for  new  trial,  84S. 

CO-PARTIES, 

notice  to,  effects  a  severance,  13S,  n.  1. 

meaning  of  term,  ijo.  ,, 

declining  to  appeal,  when  they  must  be  notified,  139. 

notice  to,  is  jurisdictional,  144. 

failure  to  notify,  waiver  of  objection,  145,  146. 

may  become  adversaries,  how,  156. 

who  refuse  to  join,  effect  of  appeal  upon,  163. 

service  of  notice  on,  1S1. 

form  of  notice  to,  874. 

COSTS, 

can  not  be  retaxed  after  appeal  involving  question  of,  543. 
generally  go  against  party  who  enters  remittitur,  573. 
reversal  generally  carries  costs  from  the  first  error,  5S1. 
stenographer's  fees  are  part  of,  5S1,  n.  3. 
cost  of  transcript  is  part  of  costs  of  appeal,  5S1,  n.  3. 
presumed  to  have  been  properly  taxed,  725. 

affidavits  and  motions  in  regard  to  are  brought  into  record  by  bill  of  ex- 
ceptions, S17. 

COUNSEL, 

what  he  may  state  in  argument,  671,  672. 

his  misconduct  is,  in  effect,  the  misconduct  of  his  client,  672. 

improper  remarks  by,  672. 

when  his  misconduct  is  cause  for  reversal,  672. 

can  not  read  from  legal  treatises,  672. 

presumption  that  court  did  its  duty  in  restraining  argument  and  preventing 

misconduct  of,  725. 
refusal  of  court  to  prevent  or  correct  misconduct  of,  cause  for  new  trial,  S48. 

COUNTER-CLAIM, 

as  affecting  jurisdiction,  63,  64. 
may  be  first  attacked  on  appeal,  477,  47S. 

gives  defendant  who  pleads  it  the  right  to  open  and  close,  671,  n.  1,  on  p. 
616. 

COl   RTS, 

can  not  be  deprived  of  constitutional  jurisdiction,  2. 

only  judicial  duties  can  be  imposed,  3. 

not  recpiired  to  give  opinions  to  legislature,  4. 

inferior,  legislature  may  establish,  2.  n.  3. 

inherent  powers  of,  6,  45. 

power  to  frame  rules,  7. 


INDEX. 

[References  ii><-  to  Si  •  tions.] 
COURTS— continued. 

power  to  amplify  jurisdiction,  9. 
power  to  supply  statutory  omissions,  11. 

presumption  as  to  organization,  71  \. 

CRIMINAL    CASES, 
appeals  in,  269-298. 

See  Appeal  in  Criminal  Cases. 

CROSS-COMPLAINT, 

may  be  first  attacked  on  appeal,  477. 

CROSS-ERRORS, 

may  be  assigned,  415. 

when  necessary  to  assign,  416. 

nature  of  assignment  of,  417. 

object  of  assignment  of,  41S. 

effect  of  assignment  of,  419. 

foundation  for  assignment  must  be  laid  in  trial  court,  42c. 

transcript  in  case  of,  421. 

notice  of  assignment  of,  422. 

time  within  which  they  must  be  assigned,  423. 

answer  to  assignment  is  unnecessary,  424. 

briefs  on,  time  for  filing,  450. 

form  of  assignment  of,  SS5. 

CROSS-EXAMINATION, 

limit  of  is  largely  discretionary  with  court,  618. 
latitude  should  be  allowed  upon,  618,  n.  1. 

offer  of  evidence  that  witness   is  expected  to  give  after  objection  is   sus- 
tained is  unnecessary,  747. 

CURING    ERROR, 

nature  of  the  power  to  cure  error,  693. 
limitations  upon  the  power,  694. 

power  to  cure  error  can  not  be  arbitrarily  exercised,  695. 
exercise  of  the  power  may  entitle  party  to  a  postponement,  696,  697. 
rulings  on  motions  or  demurrers  may  lie  corrected  any  time   before  issues 
are  closed,  697. 

how  error  in  ruling  on  motions  or  demurrers  may  be  cured,  007. 

error   in   admitting  evidence  may  be   cured    by  other  evidence   making   it 

competent,  69S. 
proving  same   facts  by  competent  evidence  may  cure  error  in  admitting 

incompetent  evidence,  6 
error  in  admitting  incompetent  evidence  may  he  cured  by  its  withdrawal, 

700. 
error  in  admitting  incompetent  evidence  may  be  cured  by  instruction  to 

disregard  it,  701. 


832  INDEX. 

A\  ft  fences  art  to  Sections.] 
CURING    ERROR— continued. 

exceptional  cases,  in  which  error  is  not  cured  by  instruction  to  disregard 
evidence,  7<>j. 

error  in  admitting  evidence  is  cured  by  sustaining  motion  to  strike  it  out, 

7°3< 
voluntary  withdrawal  of  evidence  will  not  always  cure  error  in  admitting 

it,  703,  704. 

errors  in  instructions  may  be  cured  by  withdrawing  or  correcting  them.  705. 

erroneous  instruction  is  not  cured  by  merely  giving  another  contradicting 
it,  705. 

error  in  refusing  a  specific  instruction  is  not  cured  by  merely  giving  a 
general  abstract  instruction  on  the  subject,  706. 

subsequently  admitting  evidence  wrongly  excluded  cures  the  error.  707. 

error  in  excluding  evidence  is  not  cured  by  admitting  evidence  of  less  pro- 
bative force,  707. 

error  in  refusing  continuance  is  cured  by  subsequently  granting  it,  708. 

error  in  refusing  change  of  venue  is  cured  by  subsequently  granting  it,  70S. 

error  in  refusing  order  of  examination  of  party  is  cured  by  subsequently 
ordering  it,  708. 

error  in  directing  general  and  special  verdict  instead  of  special  only  is 
cured  where  judgment  is  on  special  alone,  70S. 


D 

DAMAGES. 

when  appellate  tribunal  can  direct  the  amount  to  be  awarded,  571,  572. 
amount  of  is  generally  a  question  for  the  jury,  572,  n.  1. 
failure  to  award  nominal,  when  harmless,  636. 
error  in  assessment  of,  how  questioned,  S55,  S56. 

DEATH, 

of  partv,  substitution  of  heirs  or  legal  representative,  137. 

of  party  before  appeal,  effect  of,  [65. 

of  party  after  appeal,  effect  of,  166. 

of  one  of  several  appellants,  effect  of,  107. 

abatement  by,  169. 

DECEDENTS'    ESTATES, 

appellate  court  has  jurisdiction  over  appeals  in  cases  of  claims  against,  70. 
appeals  in  matters  connected  with,  245-268. 

DEFAULT, 

record  in  case  of,  193. 

relief  must  be  first  sought   in  trial  court  where   process  has  been  served, 

3-9-334- 
when  question  may  be  first  made  on  appeal,  330-332,  334.  7S4. 
ailure  to  plead,  objections  must  be  made  in  trial  court.  335. 


INDEX.  833 

References  are  to  Sections. 
DEFAULT— continued. 

rule  as  to  sufficiency  of  complaint  first  attacked  on  appeal  in  case  of  de- 
fault, 475. 
no  pre. sumption  of  jurisdiction  in  case  of,  710,  7S4. 
presumption  that  judgment  was  properly  entered  in  open  court,  725. 

DEMURRER, 

assignment  of  errors  as  to  rulings  on,  327,  357. 

ruling  on,  is  not  cause  for  new  trial,  348. 

to  assignment  of  errors,  401,  402. 

to  special  plea,  413. 

erroneous  rulings  on,  when  harmless,  637,  666,  669. 

resorting  to  evidence  to  determine  whether  ruling  on  is  harmless,  63S. 

when  error  in  ruling  upon  is  prejudicial,  666-669. 

record  will  he  examined  to  determine  whether  error  in  ruling  upon  is 

prejudicial,  666,  667. 
where  ruling  upon  is  excepted  to  and  error  is  effectively  saved,  no  further 

steps  need  be  taken  to  make  it  available,  66S. 
failure  to  demur,  waiver  of  objections,  6S1. 
failure  to  demand  a  ruling  waives  it,  6S2. 
is  waived  by  answering  before  ruling  on,  6S2. 
answering  or  amending  pleading  after  ruling  on  demurrer  waives  it,  6S3. 

DEMURRER    TO    THE    EVIDENCE, 

when  it  lies,  685. 

who  may  demur,  6S5  and  n. 

what  evidence  can  be  considered  upon,  685,  n. 

what  it  admits,  685,  n.,  6S6,  n.  2. 

practice  upon,  6S5,  n. 

mode  of  saving  question  as  to  ruling  on,  6S5,  n. 

joinder  in,  waives  jury  trial,  6S5. 

ruling  on,  is  waived  by  introducing  evidence  thereafter,  6S6. 

what  objections  to  pleadings  are  waived  by,  6SS. 

objections  to  competency  of  evidence  are  waived  by,  6S9. 

motion  for  new  trial,  when  not  prevented  by,  6S9. 

DEPOSITIONS, 

presumptions  as  to,  721. 

must  be  brought  into  record  by  bill  of  exceptions,  817,  n,  1  on  p.  7<"m 

DILIGENCE, 

required  of  party  who  seeks  to  appeal  after  statutory  period,  115. 
must  be  shown  by  party  who  seeks  new  trial   on  ground  ol   newly  discoi 
ered  evidence,  S57. 

DISABILITIES, 

appeal  by  parties  who  have  been  under,  I30, 

53 


834  [NDEX. 

[References  are  to  Sections.} 
DISCRETIONARY    POWER    OF    APPELLATE    TRIBUNAL, 
to  grant  leave  to  withdraw  transcript,  536. 
to  reinstate  appeal,  537. 

to  direct  a  specific  judgment  or  order  a  new  trial,  567-569. 
to  compel  a  party  to  enter  a  remittitur  or  suffer  a  reversal,  570-573. 
as  to  costs,  581. 

DISCRETIONARY    POWER    OF   TRIAL    COURT, 

definition  of  judicial  discretion,  597. 

it-  exercise  is  not  subject  to  review,  59S,  600. 

it-  scope,  599. 

its  abuse  may  be  prejudicial  error,  600. 

absolute  and  limited  discretion,  601. 

proceedings  may  be  reviewed  where  it  is  abused  or  its  limits  are  trans- 
cended, 602,  603. 

how  abuse  of  must  be  shown,  604. 

burden  is  upon  complaining  party  to  show  abuse,  604. 

failure  to  exercise  may  be  available  error,  605. 

court  may  designate  time  for  filing  pleadings,  606. 

court  may  allow  amendments,  607. 

denying  amendment  may  be  available  error,  608. 

denying  negligent  party  leave  to  amend  is  not  error,  609. 

when  court  can  allow  amendments  after  verdict,  610. 

amendment  can  not  be  made  to  remedy  entire  failure  of  proof,  611. 

as  to  calling  a  jury,  612. 

as  to  impaneling  a  jury  and  determining  the  cpualifications  of  jurors,  613, 
614. 

as  to  mode  of  trial  in  equity  cases,  615. 

as  to  time  and  conduct  of  trial,  616. 

as  to  order  of  introducing  evidence,  617. 

as  to  recalling  witnesses,  617. 

as  to  examination  of  witnesses,  618. 

as  to  ordering  a  view,  619. 

as  to  ordering  examination  of  the  person,  620. 

as  to  discharge  of  jury  before  verdict,  621. 

a-  to  granting  time  to  file  bill  of  exceptions,  622. 

its  abuse  may  be  cause  for  new  trial,  850. 

DISMISSAL, 

of  appeal,  motion  and  notice  are  necessary,  376,  533. 

motion  for  because  of  defective  bond,  37S. 

of  appeal,  when  failure  to  file  bond  is  cause  for,  400,  527. 

of  appeal,  motion  tor  is  waived  bv  common  joinder,  406,  519. 

of  appeal,  motion  for  because  of  failure  to  appeal  in  time,  40S,  524. 

motion  to  dismiss   is   generallj'  a  preliminary  motion  to  be  made  before 

general  appearance,  519. 
court  may  dismiss  appeal  on  its  own  motion,  520. 
-eeond  motion  to  dismiss  not  generally  entertained,  521. 


INDEX.  835 

1\\  ferences  arc  to  Sections .] 
DISMISSAL— continued. 

merits  not  considered  on  motion  to  dismiss,  522. 

for  failure  to  comply  with  rules  of  court,  523. 

for  failure  to  give  notice,  525. 

for  lack  of  appealable  interest,  526. 

for  attempting  to  prosecute  two  appeals  at  same  time,  528. 

of  appeal  from  judgment  rendered  in  obedience  to  mandate  of  appellate 

tribunal,  529. 
because  appellant  has  brought  suit  to  review,  530. 
parties  to  motion  for  dismissal  of  appeal,  531. 
requisites  of  motion  for,  532. 
appeal  may  be  dismissed  as  to  one  party  without  affecting  rights  of  others, 

532,  n.  2. 
notice  of  motion  to  dismiss  appeal,  533. 
by  appellant,  534. 
effect  of,  535. 

leave  may  be  given  to  withdraw  transcript  after  dismissal,  536. 
form  of  bill  of  exceptions  on  motion  to  dismiss  appeal,  S64. 

DIVORCE, 

alimony  can  not  be  allowed   pending  appeal  from  decree  in  divorce  ca^e, 
543- 

DOCKETING  APPEALS, 

order  of,  45S. 

transcript  and  assignment  of  errors  must  be  filed  first,  458—460. 
exceptions  to  rule  requiring  assignment  of  errors  before  cause  will    be 
docketed,  459. 


E 

EFFECT  OF  APPEAL, 

appeal  removes  case  from  jurisdiction  of  trial  court,  541,  543. 

where  appeal   operates   as    supersedeas,   it    prevents   enforcement   of  trial 

court  judgment,  541. 
appeal  from  interlocutory  order  does  not  entirely  oust   jurisdiction  of  trial 

court,  542. 
appeal  generally  brings  up  entire  case,  544. 

collateral  and  independent  matters  are  not  affected  by  appeal,  ^45. 
judgment  of  trial  court  remains  unaffected  except  that  it   may  be  stayed, 

546. 
action  on  judgment  is  not  barred  by  appeal,  547. 
appeal  does  not  prevent  trial  court  from  amending  and  correcting  record, 

54s- 
appeal  prevents  trial  court  from  making  an  entirely  new   record,  549. 


336  INDEX. 

[References  arc  to  Sections.] 
ELECTION, 

parties  are  bound  by,  149,  496. 

may  bar  appeal,  149,  409,  496. 

to  enter  remittitur  or  suffer  reversal,  570,  572. 

of  remedies,  prejudicial  error  in,  654-658. 

EQUITY  CASES, 

jurisdiction  of  Supreme  Court  over,  37. 
what  are,  38,  39. 

ERROR, 

waiver  of,  in  criminal  cases,  290. 
prejudicial,  must  be  shown  by  record,  292. 
joinder  in,  404,  406. 

release  of  must  be  specially  pleaded,  40S. 
cross  errors,  415. 

assignment  of  cross-errors,  416-424. 
definition,  587,  589,  n.  1. 

erroneous  rulings  may  be  sufficient  to  overthrow  judgment  on  direct  at- 
tack, but  not  on  collateral  attack,  5SS. 
ruling  right  when  made  does  not  constitute,  5S9 
ultimate  ruling  may  correct  intermediate  mistakes,  590,  633. 
in  ruling  asserting  a  wrong  theory,  590,  591. 
must  be  shown  by  record,  592,  632. 

ruling  not  probably  prejudicial  is  not  available,  593,  632. 
when  presumed  to  be  prejudicial,  594,  632. 
rulings  upon  pleadings  afterwards  amended  can  not  be  assigned  as  error, 

595- 
pleadings  upon  which  it  is  alleged  must  be  in  the  record,  596. 

in  the  exercise  of  discretionary  powers,  603-622. 

distinction  between  error  and  procedure  necessary  to  make  it  available, 

623. 

steps  necessary  to  make  it  available,  624. 

conduct  of  party  may  preclude  him  from  making  it  available,  625. 

invited  error,  626-630. 

harmless  error,  631-652. 

prejudicial  error,  631,  632,  653-673. 

available  error  does  not  exist  where  there  is  a  waiver,  674. 

when  and  how  cured,  693-70S. 

how  it  must  be  made  to  appear  in  bill  of  exceptions,  S12. 

of  law  occurring  on  the  trial  is  cause  for  new  trial,  S53. 

See  Assignment  of  Ijuiors  ;  Cross-Errors. 

ESTOPPEL, 

suit  for  review  ma)'  estop  party  from  appealing,  149. 

acceptance  of  benefit  of  judgment  may  estop  party  from  appealing,  150. 

voluntary  release  will  estop  party  from  appealing,  150. 

collecting  by  execution  may  estop  party  from  appealing,  150,  n.  2. 


INDEX.  837 

[References  are  to  Sections. \ 
ESTOPPEL— continued. 

exceptions  to  rule,  151. 

payment  by  defendant  does  not  estop  him  from  appealing,  152. 
of  sureties  on  appeal  bond,  368. 
is  foundation  of  doctrine  of  invited  error,  630. 
See  Theory  of  the  C  vsi  . 
EVIDENCE, 

order  of  introduction  is  largely  in  discretion  of  trial  court,  617. 

manner  of  eliciting  is  largely  in  discretion  of  trial  court,  61S. 

of  fact  admitted  in  pleadings  is  unnecessary,  627. 

opening  the  door  to  incompetent,  62S. 

effect  of  introducing  incompetent,  627,  629. 

a  party  can  not  gain  any  advantage  from  the  rejection  of  competent  evi- 
dence at  his  own  procurement,  630. 

admission  of  incompetent,  court  can  not  say  that  error  was  harmles- 

when  it  may  be  resorted  to  in  order  to  determine  whether  erroneous  rul- 
ing on  demurrer  was  harmless,  638. 

when  rulings  admitting  or  excluding  are  harmless,  641. 

errors  in  instructions  may  be  harmless  where  verdict  is  right  on,  643. 

when  ridings  admitting  or  excluding  are  prejudicial,  670. 

effect  of  introducing  after  ruling  on  demurrer  to  evidence,  686. 

effect  of  introducing  after  motion  for  verdict  in  favor  of  moving  party,  6S7. 

waiver  of  objections  to  by  demurrer  to  evidence,  689. 

error  in  admitting  may  be  cured  by  supplementary  evidence  making  it 
competent,  69S. 

proving  same  facts  by  competent  evidence  may  cure  error  in  admitting 
incompetent,  699. 

error  in  admitting  may  be  cured  by  withdrawing  it,  700. 

error  in  admitting  may  sometimes  be  cured  by  instruction  to  disregard  it. 
700-702,  and  notes. 

sustaining  motion  to  strike  out  may  cure  error  in  admitting  incompetent. 

7°3- 
when  party  can  not  withdraw  over  objection,  704. 
subsequently  admitting  evidence  may  cure  error  in  excluding  it,  707. 
presumption  that  rulings  on  were  correct,  721. 
inspection  of  documentary,  notice  to  produce,  740,  741. 
offers  of  oral,  742-746. 

offer  not  required  on  cross-examination,  747. 
offer  of  documentary  evidence,  74S. 
objections  to,  how  made,  774,  775,  779-7S1. 
written,  may  be  brought  into  bill  of  exceptions  by  reference, 
oral,  must  be  embodied  in  bill  of  exceptions,  S20. 

stenographer's  notes  of,  how  made  part  of  bill  of  exceptions,  S21,  822. 
bill  of  exceptions  must  show  that  it  contains  all  the  evidence  given  in  the 

cause,  823. 
verdict  or  finding  not  sustained  by,  cause  for  new  trial,  854. 
newly  discovered,  cause  for  new  trial,  857. 


[NDEX. 

[References  are  to  Sections.] 

EXAMINATION, 

ofwitm  743— 749>  812,  n-  '■ 

of  person,  620. 

of  party,  error  in  refusing  may  be  cured  by  subsequently  granting  it,  708. 

EXCEPTION, 

to  decision  in  agreed  case  is  necessary,  225. 

to  ruling  in  case  of  reserved  questions  of  law  i^  necessary,  239. 

to  specific  ruling  is  necessary  in  criminal  cases,  277.  293.  296. 

record  must  show,  293. 

is  necessary  to  make  error  available.  (124. 

to  conclusions  of  law,  766,  7(17. 

definition  and  office  of,  783. 

when  required,  generally,  784. 

must  be  taken  at  time  ruling  is  made,  785,  786, 

time  may  be  given  to  reduce  it  to  writing,  785. 

must  be  addressed  to  specific  ruling,  7S7. 

joint,  must  be  well  taken  as  to  all  or  it  will  be  unavailing,  788. 

should  not  be  taken  to  several  rulings  in  gross,  789. 

party  must  rely  on  his  own,  790. 

to  instructions,  how  taken,  791,  792. 

to  conclusions  of  law,  when  and  how  taken,  793,  794. 

to  ruling  on  motion  for  new  trial,  795. 

to  judgment,  not  proper  as  a  rule,  796. 

how  stated  and  shown  in  bill,  S07,  S08. 

See  Bill  of  Exceptions. 
EXTENSION    OF    TIME    FOR    APPEAL, 
when  granted,  112-117. 

in  cases  involving  matters  connected  with  decedents'  estates.  261,  263-266. 
in  criminal  cases,  284,  285. 

F 

FELONY,  PROSECUTIONS    FOR, 

appellate  jurisdiction  is  in  Supreme  Court,  41. 
FINAL  JUDGMENT, 

what  is,  81-83,  85-95. 

requisites  of,  85. 

time  for  appealing  begins  to  run  after,  1 19. 

duration  of  stay  upon  appeal  from,  394. 

judgment  on  appeal  is,  585. 

See  Judgments. 
FORECLOSURE, 

cases  are  equity  cases,  for  Supreme  Court,  39. 
sale,  right  of  purchaser  to  appeal,  137. 


INDEX.  839 

{References  arc  to  Sections.] 
FORMS, 

agreed  case,  86 1. 

appeal  bond,  870. 

appeal  In  term,  entry,  869. 

application  for  leave  to  amend  the  assignment  of  errors,  884. 

assignment  of  errors,  ordinary  form,  87S. 

assignment  of  errors,  appeal  from  Marion  Superior  Court,  879. 

assignment  of  cross-errors,  SS5. 

bill  of  exceptions,  challenge  of  juror,  866. 

bill  of  exceptions,  misconduct  of  juror,  S6S. 

hill  of  exceptions,  motion  to  dismiss,  864. 

bill  of  exceptions,  motion  to  make  specific,  S65. 

bill  of  exceptions,  overruling  motion  for  new  trial,  867. 

bill  of  exceptions,  questions  of  law  arising  on  instructions,  S63. 

bill  of  exceptions,  reserved  questions  of  law,  862. 

caption,  title  of  cause,  signature,  860. 

common  joinder,  8S3. 

joinder  in  error,  8S3. 

motion  to  dismiss,  acceptance  of  payment,  8S1. 

motion  to  dismiss,  failure  to  notice  co-parties,  S90. 

motion  to  dismiss,  failure  to  perfect  appeal  in  time,  SS2. 

motion  to  modify  mandate,  894. 

motion  to  reinstate,  892. 

motion  to  vacate  supersedeas,  S90. 

notice,  to  clerk,  872. 

notice,  of  motion,  S92. 

notice,  to  co-party,  S74. 

notice,  to  party,  871. 

petition  to  advance,  matter  of  private  concern,  SSS. 

petition  to  advance,  matter  of  public  interest, 

petition  for  certiorari,  omission  of  part  of  record,  8S6. 

petition  for  certiorari,  change  of  record  nunc  fro  tunc  ^~ . 

petition  for  rehearing,  893. 

praecipe  for  transcript,  S73. 

transcript,  certificate  where  entire  record  is  ordered, 

transcript,  certificate  where  part  oi  record  is  ordered.  877. 

transcript,  formal  parts,  S75. 

FRAUD, 

relief  against,  when  partv  may  be  allowed  to  appeal  after  statutory  time, 

112. 
as  cause  for  permitting  assignment  of  errors  to  be  filed  after  time,  304. 
may  be  cause  for  setting  aside  a  supersedeas,  399. 
may  be  cause  for  permitting  party  to  withdraw  general  appearance,  678. 


S40  INDEX. 

A'-  r<  rences  are  to  Sections.] 

H 

HABEAS  CORPUS, 

appellate  jurisdiction  is  in  Supreme  Court,  41. 
appeal  lies  from  interlocutory  orders,  107. 
specifications  of  error  in  cases  of,  339. 

HARMLESS   ERROR, 

meaning  of  the  term,  631. 

is  generally  one  concerning  procedure  and   not   affecting  primarv  rights . 

631. 
error  not  shown  to  be  probably  prejudicial  is  harmless,  (152. 
wrong  mode  of  procedure  which  reaches  right  result  is  generally  harmless, 

limitations  of  rule  that  errors  are  harmless  where  right  result  is  reached,. 

634- 
uninfluential  errors  are  harmless,  635. 

failure  to  assess  nominal  damages  is  generally  harmless  error.  636. 
when  failure  to  assess  nominal  damages  is  not  harmless,  636. 
error  in  overruling  a  demurrer  to  a  bad  paragraph  of  complaint  may  be 

harmless  where  the  judgment  rests  on  good  paragraphs,  637. 
error  in  sustaining  demurrer  to  one  of  several  paragraphs  of  answer  may 

be  harmless,  637. 
other  harmless  rulings  on  demurrer,  637. 
when  evidence  may  be  resorted  to  in  order  to  determine  whether  ruling  on 

demurrer  is  harmless,  63S. 
when  rulings  on  motions  to  strike  out  or  reject  pleadings  are  harmless,  639. 
pleadings  defective  merely  in  form  will  be  deemed  on  appeal  to  have  been 

amended,  640. 
when  rulings  admitting  or  excluding  evidence  are  harmless,  641. 
when  errors  in  instructions  are  harmless,  642-64S. 
when  rulings  in  selecting  and  impaneling  jury  are  harmless,  649. 
when  misconduct  of  juror  is  harmless,  650. 

when  rulings  in  regard  to  special  interrogatories  are  harmless,  651. 
when  rulings  upon  verdicts  are  harmless,  652. 

HEARING  APPEALS, 

order  of,  461. 

i  nuri  may  change  order  of,  462. 

advancement,  463. 

can  not  be  advanced  by  mere  agreement  of  parties,  404. 

application  for  advancement,  465. 

appeal  must  be  submitted  before  advancement,  466. 

notice  of  application  to  advance,  467. 

motion  to  advance,  hearing  and  question  for  decisions  on,  46S,  469. 

forms  of  petition  to  advance,  S88,  SS9. 


INDEX.  841 

[References  are  (n  Sections.] 
HEIRS, 

may  be  substituted  as  parties  to  appeal,  137. 

should  unite  with  personal  representative  in  appeal,  when,  16S. 

appealable  interest  of,  168. 

HUSBAND  AND   WIFE, 

joint  assignment  of  errors  good  as  to  wife  is  good  as  to  both,  319. 


INCIDENTS, 

go  with  the  principal,  36,  40,  4S. 
INDEPENDENT  SPECIFICATIONS  OF  ERROR, 

when  proper,  338,  349,  350. 
INDICTMENT. 

when  it  may  be  first  attacked  on  appeal,  488. 
INHERENT  POWERS, 

of  constitutional  courts,  6. 

of  Supreme  and  Appellate  Court.  45. 

of  appellate  tribunals  to  control  inferior  courts  514.  n.  1. 

of  appellate  tribunal  to  reinstate  appeal,  537. 

INJUNCTION, 

appellate  tribunal  may  grant  in  aid  of  its  appellate  jurisdiction.  506.  510,  512. 
a  verified  petition,  notice  and  bond  are  required,  513. 

can  not  be  granted  by  trial  court  after  final  judgment  refusing  it  and  ap- 
peal therefrom,  543. 

INSPECTION, 

is  discretionary  with  court.  619. 

of  instructions,  request  for,  734. 

of  documentary  evidence.  740. 

reasonable  notice  must  generally  be  given  to  produce  document  for,  740. 

when  notice  is  not  required,  741. 

INSTRUCTIONS. 

appeal  upon,  193. 

should  be  clearly  designated  and  specified.  401. 

given  at  request  of  party  can  not  be  complained  of  by  him.  626. 

a  party  who  asks  oral  instructions  can  not  complain  because  they  were 
not  written,  627. 

a  partv  who  asks  instructions  on  a  certain  theory  can  not  complain  be- 
cause the  court  gave  similar  instructions  at  request  o\  his  adversary.  627. 

a  party  who  asks  instructions  that  certain  tacts  are  immaterial  invites  the 
court  to  so  treat  them,  627. 

errors  in,  when  harmless,  642-64S. 


842 


INDEX. 


[References  are  to  Sections.]    . 
INSTRUCTIONS— continued. 

irrelevant,  are  generally  harmless,  642. 

verbal  inaccuracies  in,  when  harmless,  644. 

are  generally  unnecessary  in  equity  cases,  646. 

incomplete,  when  harmless.  647. 

construction  on  appeal,  648. 

to  disregard  evidence  may  cure  error  in  admitting  it,  701. 

to  disregard  evidence  will  not  always  cure  error  in  admitting  it,  702. 

errors  in  may  be  cured  by  withdrawing  or  correcting  them,  705. 

erroneous  are  not  cured  by  merely  giving  others  contradicting  them,  705. 

when  error  in  refusing  is  cured  by  giving  others.  706. 

presumption  that  correct  were  given  on  all  materiahpoints,  722. 

presumption  that  they  were  written,  725. 

request  for  should  be  made  in  writing  before  argument,  733,  735,  736. 

request  for  inspection  of,  734. 

may  he  read  to  jury  by  counsel,  when,  734,  n.  5. 

should  be  prepared  and  submitted  to  court  before  argument,  735,  736. 

exceptions  to,  791. 

how  made  part  of  record,  792,  817,  n.  1,  on  p.  769. 

noting  exceptions  to.  792. 

form  of  bill  of  exceptions  where  questions  of  law  arises  on,  863. 

INTEREST, 

after  judgment  not  considered  on  question  of  jurisdiction,  61. 
may  be  recovered  in  suit  on  appeal  bond,  361. 

INTERLOCUTORY   ORDERS, 

appeal  will  not  generally  lie  from,  80,  81. 

ruling  on  demurrer.  Si. 

ruling  on  motion  to  quash,  Si. 

ruling  suppressing  depositions,  81. 

conclusions  of  law  on  special  finding,  Si. 

orders  setting  aside  former  orders,  Si. 

orders  as  to  admission  of  parties,  Si,  84,  n.  2.  SS,  n.  3. 

orders  dissolving  or  refusing  to  dissolve  attachment,  Si,  SS,  n.  3. 

orders  for  guardian  to  report,  S4,  n.  2. 

orders  respecting  time  of  trial  and  place  on  calendar.  Si,  84,  n.  2. 

order  disposing  of  part  of  ease,  84,  n.  2. 

order  for  inspection  of  books  or  papers,  104. 

when  appeal  will  lie  from,  100-107. 

effect  of  appeal  from,  10S. 

mode  of  appealing  from,  109. 

in  matters  connected  with  decedents'  estates.  229. 

upon  appeals  from.  395, 
appeal  from  docs  not  completely  oust  jurisdiction  of  trial  court,  542. 

INTERROGATORIES, 

special,  motion  for  judgment  on,  327. 


INDEX.  843 

[References  are  to  Sections.] 
INTERROGATORIES— contin  tied. 

to  parties,  rulings  on  should  he  specified  as  independent  errors,  33S. 

special,  when  refusal  to  submit  is  harmless  error,  651. 

special,  when  immaterial  are  submitted  the  error  is  harmless,  651. 

refusal  to  submit  to  jury,  when  prejudicial  error,  673. 

when  the}'  may  be  withdrawn,  673,  730. 

when  jury  can  answer  that  there  is  no  evidence,  673. 

when  answers  are  not  specific  party  should  move  to  recommit,  691. 

must  be  expressly  recpiested  by  party  who  desires  their  submission.  737. 

motion  for  judgment  on,  752. 

question  as  to  right  to  judgment  on  answers  of  jury  to,  can  not  be  raised 

by  motion  for  a  new  trial,  S47. 
refusal  of  court  to  submit  is  cause  for  new  trial,  S47. 

INTERVENORS, 

when  they  may  appeal  and  assign  error,  312. 
INVITED    ERROR, 

distinction  between  error  and  procedure  necessary  to  make  it  available,  623. 

steps  necessary  to  make  error  available.  024. 

conduct  of  party  may  affect  right  to  make  error  available.  625. 

party  who  procures  erroneous  ruling  can  not  make  it  available,  626. 

implied  invitation  to  rule  erroneously,  627. 

opening  door  to  incompetent  evidence,  62S. 

effect  of  incompetent  evidence  upon  party  who  introduces  it.  629. 

doctrine  of,  is  founded  on  estoppel,  630. 

ISSUE, 

trial  without,  352,  682. 

trial  upon  immaterial,  party  who  tenders  it  can  not  complain.  627. 

wrong  ruling  on  immaterial  issue  is  generally  harmless,  035. 

presumption  that  judgment  is  within,  719. 

rulings  made  in  formation  of  are  not  rulings  concerning  conduct  of  trial. 

and  leave  should  be  obtained  at  the  time  to  reduce  to  writing  exceptions 

thereto,  813. 

J 

JOINDER    IN    ERROR, 

form  and  substance  of,  404. 
common  joinder  admits  record,  405. 
waiver  by  common  joinder,  406. 
form  of,  SS3. 

JOINT    PARTIES, 

should  all  be  parties  to  appeal  where  judgment  is  joint,  13S. 

See  P  \k ties. 
JUDGE, 

presumptions  in  favor  of,  714. 
pro  tempore.  714. 


sll  INDEX. 

[References  are  to  Sections. _, 

|  l'  1 )(  rE — continued. 

change  of,  714. 

must  rule  when  properly  requested,  727. 

duty  to  sign  and  settle  bill  of  exceptions,  798,  799,  810. 

See  Presumptions;   Trial  Court. 

JUDGMENTS, 

power  of  appellate  courts  to  frame,  21. 

appeal  lies,  as  a  general  rule,  only  from  final,  79,  So. 

what  are  final,  81-95. 

difference  between  intermediate  decisions  and  final  judgment,  S2. 

final  judgment  disposes  of  entire  case,  83. 

requisites  of  a  final  judgment,  S5. 

in  actions  for  new  trial,  appeal  from,  86. 

in  suits  for  review,  appeal  from,  87. 

setting  aside  executions  are  final,  88. 

ordering  or  refusing  to  order  removal  of  case  to  Federal  Court,  89- 

final,  must  determine  material  issues,  90. 

final,  must  determine  entire  case  before  court,  91. 

exceptions  to  rule  requiring  determination  of  entire  case.  95,  99 

may  be  final  although  orders  are  required  for  their  enforcement,  92. 

in  partition  proceedings,  appeal  from,  92.  93. 

form  of,  not  important,  in  determining  whether  final  or  not,  94. 

record  must  show  final  judgment  or  appeal  will  be  dismissed,  96. 

void,  appeals  will  lie  from,  no,  588,  n.  1. 

are  not  vacated  by  defendant  appealing  in  criminal  cases,  297. 

objections  to.  when  and  how  presented,  344-346. 

effect  of  supersedeas  upon  self-executing,  392,  393. 

duration  of  stay  upon  appeals  from,  394,  395. 

on  pleadings,  482. 

mandamus  will  lie  to  compel  signing  and  entry  of,  516,  n.  2. 

aic  effective  notwithstanding  appeal,  546. 

actions  upon  are  not  barred  by  appeal,  547. 

\  i.iit  and  \  oidable,  5SS,  n.  1. 

presumptions  in  favor  of,  709.  712,  71S,  719,  725. 

on  pleadings,  motion  tor,  751. 

nswers  to  special  interrogatories,  motion  for.  7^2 
on  special  verdict,  motion  for,  753-756. 

where  special  finding  is  entirely  outside  the  issues,  motion  for.  767. 
motions  to  modify  or  correct,  where  judgment  does  not  follow  finding  or 

verdict,  768. 
how  questioned,  700.  8  (.6. 

itions  for  mav  he  brought  into  record  by  hill  of  exceptions.  Si 7. 
motions  to  modify  mav   he  brought  into  record  by  bill  of  exceptions,  S17. 

JUDGMENT    OX     AIM'KAL, 

:•  binding  upon  lower  courts.  56?. 


INDEX.  845 

{References  are  to  Sections.] 
JUDGMENT  ON  APPEAL — continued. 

effect  and  characteristics  of,  563. 
remanding  case  to  trial  court,  564. 

directing  a  specific  judgment,  limits  of  appellate  tribunal's  power,  565. 
when  it  may  determine  original  questions  of  fact,  566. 
directing  a  specific  judgment,  567. 
directing  a  new  trial,  568. 
remanding  with  instructions,  569. 
directing  a  remittitur.  570. 
directing  award  of  specific  damages,  571. 

directing  amount  of  recovery  where  facts  appear  in  special  verdict  or  find- 
ing- 57-- 
apportioning  costs,  573,  575,  581. 

affirming  as  to  some  parties  and  reversing  as  to  others,  574. 
where  interests  are  blended,  575. 
must  be  obeyed  by  trial  court,  576. 
scope  and  effect  of,  577. 
is  the  law  of  the  case,  57S. 

form  and  effect  of  judgment  of  affirmance,  571). 
form  and  effect  of  judgment  of  reversal,  580. 
costs  upon  judgment  of  reversal,  5S1. 
effect  of  reversal  upon  bona  fide  purchasers,  582. 
directing  restitution,  583,  584. 
is  final,  585. 
effect  of  petition  for  rehearing,  5S6. 

JUDICIAL    POWER, 
definition,  1. 

is  vested  in  courts  by  the  constitution,  1. 
inherent  in  courts,  6,  7,  45. 
where  it  resides,  S. 
supreme,  is  in  Supreme  Court,  25. 

JURISDICTION, 

of  Supreme  Court,  2,  3,  5,  35-44. 
amplifying,  9. 
definition,  12,  499. 

when  presumed  to  exist,  12,  501,  n.  2,  502. 
consent  can  not  confer,  over  subject,  13. 
none  over  fictitious  cases,  14. 
appellate  tribunals  decide  on  their  own,  17,  n.  1. 
cases  in  which  appellate  court  has,  35,  42,  43,  47-70. 
assignment  of  errors  is  essential  to,  303. 
of  the  person,  assignment  of  errors  as  to  ruling  upon,  32S. 
of  subject,  question  as  to,  may  be  made  at  any  time,  40S,  n,  5,  470,  49S. 
distinction  between  jurisdiction  of  subject  and  jurisdiction  over  subject- 
matter  of  particular  case,  499-503. 
auxiliary,  504-5 iS. 


INDEX. 


[References  are  to  Sections.] 
■  URISDICTION— continued. 

of  trial  court,  when  ousted  by  appeal,  541-543. 
lit"  per<on,  when  appearance  waives,  677,  67S. 
of  subject,  presumption  that  court  had,  715. 
no  presumption  of  in  case  of  default,  716. 
presumption  of  is  not  rebutted  by  silence  of  record,  717. 
ctions  to,  776. 

See  Appellate  Jurisdiction. 

JURY   AND   JURORS, 

no  right  to  trial  by,  on  appeal,  29,  30. 

objections  to  mode  of  impaneling  must  be  made  in  trial  court,  341,  612, 

613.  6S4. 
partv  asking  must  show  by  the  record  a  request,  refusal  and  exception  in 

order  to  make  refusal  available  error,  612. 
refusal  to  call  must  be  assigned  as  cause  for  new  trial,  612,  n.  4. 
when  it  is  discretionary  with  trial  court  to  call,  612. 
extent  of  discretionary  power  of  court  in  determining  competency  and 

excusing  jurors,  613,  614. 
disqualification  because  of  prejudice  against  business,  614   n.  2. 
disqualification  from  knowledge  of  rumors  and  newspaper  reports,  614,  n.  2. 
discharge  before  verdict,  621. 

erroneous  rulings  in  selecting  and  impaneling,  when  harmless,  649. 
misconduct  of  jurors,  when  harmless,  650,  671. 
refusal  to  submit  interrogatories  to,  is  harmless,  when,  651. 
trial  bv.  denial  of  where  right  exists  is  prejudicial  error,  654. 
mi-conduct  of  jurors,  when  prejudicial  error,  671. 

should  not  take  instruments  of  evidence  with  them  to  jury  room,  671. 
refusal  to  submit  interrogatories  to,  when  prejudicial  error,  673. 
joinder  in  demurrer  to  evidence  waives  right  to  trial  by,  6S5. 
objections  to,  are  waived  unless  seasonably  made,  except  where  party  is 

excusably  ignorant  of  the  objection,  691. 
presumptions  concerning,  723. 
objections  to,  should  be  specific,  778. 
answers  of  jurors,  when  polled,  must  be  brought  in  by  bill  of  exceptions, 

8l  7,  n.  1  on  p.  769. 
error-  in  impaneling  are  assignable  as  cause  for  new  trial,  S4S. 
irregularity  or  misconduct  of  should  be  specifically  assigned  as  cause  for 

new  trial.  849,  S51. 
form  <  fbill  of  exceptions  where  challenge  is  overruled,  S66. 
form  of  bill  of  exceptions  in  case  of  misconduct  of  jurors,  S6S. 

JUSTICE    OF   Till-:    PEACE, 

when  Appellate  Court  has  jurisdiction  over  appeals  in  actions  originating 
before.  51-53. 


INDEX.  #j 

[References  arc  to  Sections.] 

L 

LANDLORD    AND    TENANT, 

Appellate  Court  has  jurisdiction  of  appeals  in  actions  between,  68. 

LAW, 

questions  of,  274,  279,  301,  600,  627,  630,  633. 
reserved  questions  of,  233-244. 

form  of  bill  of  exceptions  on  reserved  questions  of,  S62. 
form  of  bill  where  questions  arise  on  instructions,  S63. 

LAW    OF    THE   CASE, 

decision  of  appellate  tribunal  constitutes,  578. 

what  it  covers,  578. 

is  binding  at  every  stage,  even  upon  second  appeal,  578. 

LEADING  QUESTIONS, 

court  may  permit,  61S. 
LEGAL  REPRESENTATIVES, 

See  Personal  Representatives. 
LEGISLATURE, 

can  not  deprive  constitutional  court  of  jurisdiction,  2. 

can  impose  only  judicial  duties  on  courts,  3. 

can  not  compel  Supreme  Court  to  give  opinions  to  it,  4. 

M 

MANDAMUS, 

appellate  jurisdiction  is  in  Supreme  Court,  44. 
when  appellate  tribunal  has  power  to  issue  writ,  511,  514. 
cases  in  which  it  will  not  issue,  515,  79S. 

will  issue  to  compel  inferior  tribunal  to  act  but  not  to  decide  in  any  par- 
ticular way,  515. 
cases  in  which  it  will  issue.  516,  798. 

merits  of  case  can  not  be  determined  on  application  for,  516,  n.  3. 
is  an  extraordinary  remedy  and  not  a  writ  of  right,  517. 
verified  petition  is  required  and  strong  case  must  be  made,  517. 
will  not  lie  where  action  for  breach  of  contract  is  the  proper  remedy,  657. 
form  of  motion  to  modify  mandate,  S94. 

MARGINAL  NOTES, 

must  be  made  on  transcript  by  appellant,  204. 
MARION  SUPERIOR  COURT, 

appeals  from,  310. 

assignment  of  errors  on  appeal  from,  310. 

form  of  assignment  of  errors,  S79. 


848 


INDEX. 


[References  arc  to  Sections.] 
MISCONDUCT  OF  COUNSEL, 

is  in  effect  the  misconduct  of  his  client.  672. 
in  argument,  when  cause  for  reversal,  672. 
in  making  improper  remarks,  672. 
objections  to  should  be  specific,  782. 

refusal  of  court  to  check  or  correct  should  be  specified  in  motion  for  new 
trial,  849. 

MISCONDUCT  OF  JURORS, 
when  harmless,  650. 
when  cause  for  reversal,  671. 
should  be  specified  in  motion  for  new  trial,  851. 
form  of  bill  of  exceptions  in  case  of,  86S. 

MISCONDUCT  OF  PARTIES, 

what  is  sufficient  to  cause  a  reversal,  672. 

ohjections  to  should  be  specific,  7S2. 

particular  acts  should  be  specified  in  motion  for  new  trial,  851. 

MISDEMEANOR, 

Appellate   Court  has  jurisdiction  over  appeals  in   cases   of  prosecution 
for,  41. 

MISTAKE, 

as  to  law.  no  excuse  for  not  appealing  in  time,  114. 

when  appeal  may  he  allowed  in  case  of,  151. 

in  selecting  remedy,  effect  of,  655,  658. 

may  he  cause  for  allowing  party  to  withdraw  general  appearance,  678. 

MONEY    RECOVERIES, 

appellate  jurisdiction  over  actions  for,  57. 

MOTIONS, 

direct  are  part  of  intrinsic  record,  190,  191. 

collateral  are  not  part  of  record,  190,  191,  S14. 

for  nunc  pro  tunc  entry,  210—213. 

for  certiorari,  216—222. 

for  new  trial  not  necessary  in  agreed  case,  224,  225. 

for  new  trial  are  necessary  in  cases  of  reserved  questions  of  law,  242. 

in  arrest  of  judgment,  when  State  can  appeal  from  ruling  on,  273. 

for  new  trial  in  criminal  cases,  293. 

for  venire  de  novo,  t,2j.  343. 

for  judgment  on  answers  to  interrogatories,  327. 

to  modify  judgments,  327. 

should  specify  grounds,  and  they  need  not  be  repeated  on  appeal,  336. 

for  new  trial,  what  it  brings  up  for  review,  343. 

to  modify  judgments,  345. 

addressed  to  pleading,  ruling  on,  is  not  cause  for  new  trial,  348. 

for  new  trial,  what  are  causes  for,  347-352. 


index.  849 

{References  are  to  Sections.] 
MOTIONS— continued. 

difference  between  motion  for  new  trial  and  motion  in  arrest,  352. 

to  dismiss  appeal  for  failure  to  file  bond,  376,  400,  519,  527. 

to  dismiss  appeal  because  of  defective  bond,  378. 

to  set  aside  or  vacate  supersedeas,  399,  400. 

to  dismiss  appeal  for  failure  to  appeal  in  time,  40S,  524. 

matters  in  bar  of  appeal  may  be  presented  by,  409,  412. 

to  advance  case  for  hearing  on  appeal,  465-469. 

to  dismiss  appeal  for  failure  to  give  notice,  525. 

to  dismiss  appeal  for  lack  of  appealable  interest,  526. 

parties  to  motion  to  dismiss  appeal,  531. 

requisites  of  motion  to  dismiss  appeal,  532. 

notice  of,  to  dismiss  appeal,  533. 

to  reinstate  appeal,  539,  540. 

sustained  where  demurrer  would  be  proper  is  harmless  where  right  result 

is  reached,  633. 
striking  out  instead  of  overruling  is  harmless  error,  633. 
to  strike  out  or  reject  pleadings,  when  erroneous  rulings  on  are  harmless, 

639- 
to  make  more  specific  when  it  is  prejudicial  error  to  overrule,  665. 
failure  to  object  to  pleadings  by,  when  a  waiver,  680. 
to  direct  jury  to  return  verdict  for  moving  party,  waived  by  introducing 

evidence,  6S7. 
for  new  trial,  when  proper  after  demurrer  to  evidence,  689. 
to  set  aside  service  of  process,  presumed  properly  sustained,  725. 
must  be  presented  to  court,  726,  n.  1. 

in  course,  must  be  taken  notice  of  by  parties  in  court,  726,  n.  1. 
for  judgment  on  the  pleadings,  751. 

for  judgment  on  answers  to  special  interrogatories,  752. 
for  judgment  on  special  verdict,  753-756. 
for  venire  de  novo,  75S-763. 
to  strike  out  part  of  special  finding,  764-766. 

for  judgment  where  special  finding  is  entirely  outside  the  issues,  767. 
to  modify  or  correct  judgment  where  it  does  not  follow  finding  or  verdict, 

76S. 
for  new  trial  as  a  means  of  questioning  special  finding,  793. 
for  new  trial,  ruling  on  must  be  excepted  to,  794,  795. 
recitals  in  must  be  made  part  of  record  by  bill  of  exceptions,  815. 
what  may  be  brought  into  record  by  bill  of  exceptions,  817  and  note, 
for  new  trial  as  a  means  of  presenting  questions  to  trial  court  for  review, 

829-859. 

See  New  Trial. 

MUNICIPAL    ORDINANCE, 

cases  involving,  appellate  jurisdiction  over,  43,  54,  n.  2. 

54 


850  INDEX- 

Refen  nces  are  to  Sections.] 

N 

NEW    TRIAL, 

motion  for  is  not  necessary  in  agreed  case,  224,  225. 
motion  tor  is  necessary  in  case  of  reserved  questions  of  law,  242. 
motion  for  in  criminal  cases,  293. 

motion  for  is  appropriate  to  bring  in  review  rulings  upon  matters  pertain- 
ing to  trial,  327,  343. 
causes  for  are  not  assignable  as  error  on  appeal,  347,  351,  352. 
that  the  court  erred  in  overruling  motion  for,  is  proper  assignment,  347,  351. 
rulings  on  demurrer  or  motions  addressed  to  pleadings  are  not  causes  for, 

id 

matters  not  cause  for,  may  be  specified   as  independent  error  on  appeal. 

349-  350. 

mandamus  will  not  lie  to  compel  trial  court  to  grant,  515. 

when  discretionary  with  appellate  tribunal  to  direct,  563,  56S,  574,  575 

when  directed  it  must  be  granted  by  trial  court,  576. 

evidence  adduced  on  former  trial  need  not  be  adhered  to,  577. 

refusal  to  call  a  jury  must  be  assigned  as  cause  for,  to  be  considered  on 
appeal,  612,  n.  4. 

when  motion  for  is  proper  after  demurrer  to  evidence,  689. 

when  motion  for  is  proper  in  case  of  special  finding,  793,  794. 

ruling  on  motion  for  must  be  excepted  to,  795. 

affidavits  in  support  of  motion  for  must  be  brought  into  record  by  bill  of 
exceptions,  817. 

motion  for  is  part  of  record  and  need  not  be  brought  in  by  bill  of  excep- 
tions, 817. 

motion  for  is  the  ordinary  means  of  presenting  questions  to  trial  court 
for  review,  S29,  830. 

office  of  motion  for,  on  appeal,  831. 

motion  for  can  not  precede  the  decision,  832. 

motion  for  is  not  cut  off  by  entry  of  judgment,  S33. 

motion  for  is  cut  off  by  motion  in  arrest  of  judgment,  S34. 

all  causes  should  be  embraced  in  one  motion,  S35. 

successive  motions,  when  permitted,  836,837. 

different  classes  of  motions  for,  838. 

joint  motion  for,  S39. 

requisites  of  motion  for,  generally,  840. 

time  of  filing  motion  for,  841. 

mot  on  for  should  be  filed  in  open  court,  S 

motion  usually  goes  to  entire  case,  S43. 

when  awarded  as  to  part  of  case,  844. 

motion  should  he  complete  in  itself,  845. 

rulings  on  pleadings  and  objections  to  form  of  judgment  are  not  causes 
for,  846. 


INDEX.  851 

{References  are  to  Sections.] 
NEW  TRIAL— -continued. 

refusal  of  court  to  submit  interrogatories  is  cause  for,  but  question  as  to 
right  to  judgment  thereon  can  not  be  presented  by  motion  for  new- 
trial,  847. 

prejudicial  irregularity  in  proceedings  of  court  is  cause  for,  848. 

particular  irregularities  complained  of  must  be  specified,  848. 

irregularity  of  jury  or  prevailing  party  is  cause  for,  849. 

abuse  of  discretion  may  be  cause  for,  850. 

misconduct  of  jury  or  prevailing  party  is  cause  for,  S51. 

misconduct  must  be  specified,  851. 

accident  or  surprise  may  be  cause  for,  852. 

surprise  must  be  as  to  matter  of  fact  and  not  of  law,  852. 

errors  of  law  occurring  on  the  trial  are  cause  for,  853. 

errors  must  be  specified,  853. 

where  verdict  or  finding  is  contrary  to  law,  854. 

where  verdict  or  finding  is  not  sustained  by  evidence,  854. 

error  in  assessing  damages  is  cause  for,  855. 

that  damages  are  excessive  is  proper  assignment  of  cause  for,  in  actions 
ex  delicto,  but  not  in  actions  ex  contractu,  Se,6. 

fifth  statutory  cause  should  be  assigned  in  actions  ex  contractu  where 
damages  are  erroneously  assessed,  856. 

newly  discovered  evidence  as  a  cause  for,  S57. 

on  grouud  of  newly  discovered  evidence,  party  asking  must  show  diligence, 

857- 

newly  discovered  evidence  merely  cumulative  or  impeaching  is  not  suf- 
ficient, S57. 

affidavit  is  necessary  in  case  of  newly  discovered  evidence,  857. 

newly  discovered  evidence  must  be  competent,  material  and  relevant,  857. 

counter-affidavits  are  admissible  upon  the  question  of  diligence,  858. 

when  motion  must  be  verified  or  supported  by  affidavit,  859. 

form  of  bill  of  exceptions,  867. 

NOTICE, 

when  it  must  be  given  to  co-parties,  139,  141,  144. 

is  necessary  to  constitute  due  process  of  law,  143. 

is  jurisdictional,  144,  173. 

waiver  of,  145,  146,  175,  286. 

to  one  who  is  a  party  but  not  a  co-party,  effect  of,  164. 

what  is  sufficient,  171. 

must  be  in  writing,  172. 

by  publication,  legislature  may  authorize,  173,  183. 

time  for  which  it  must  be  given,  174. 

upon  whom  it  must  be  served,  176. 

service  on  attorney  of  record,  177. 

service  on  one  of  several  attorneys,  178. 

proof  of  service,  179. 

filing  of  notice  and  proof,  1S0. 


[NDEX. 

References  arc  to  Sections.] 
\<  >TICE— continued. 

service  on  co-parties,  1S1. 

lions  to.  how  made,  1S2. 
constructive,  publication,  1S3. 

I   of  publication.  1S4. 
amendment  of  proof,  1S5. 
of  motion  for  nunc  pro  tunc  entry,  212. 
of  application  for  certiorari,  221. 
of  intention  to  reserve  questions  of  law,  235. 
of  appeal  after  term,  249-251. 

of  application  for  extension  of  time  to  appeal.  264,  265. 
of  appeal  by  State.  282,  2S3. 
of  appeal  by  defendant  in  criminal  case,  286. 
where  merely  irregular  or  defective,  there  can  be  no  collateral  attack,  and 

objection  must -be  made  in  trial  court,  331.  332. 
where  there  is  no  notice,  question  may  be  first  made  on  appeal,  332. 
of  motion  to  dismiss  appeal,  376,  533. 
of  motion  in  bar  of  appeal,  412. 
of  assignment  of  cross-errors,  422. 
of  submission  of  appeal  in  term,  431,  432. 

of  submission  of  appeal  after  term,  under  act  of  18S5,  433,  435. 
of  application  for  advancement,  467. 
dismissal  of  appeal  for  failure  to  give,  525. 
to  produce  documents  for  inspection,  741,  742. 

NUNC   PK()  TUNC  ENTRIES, 
when  made,  209. 
motions  for,  210. 

by  whom  motion  may  be  made,  211. 
notice  of  motion,  212. 
evidence  on  hearing  motion,  213. 
may  be  appealed  from,  214. 

enting  ruling  on  appeal,  215. 
in  which  they  may  be  made,  693. 


OBJECTIONS, 

to  process  must  be  seasonable  and  specific,  182,  328,  329. 

may  be  waived  by  consent  in  criminal  cases,  270,  n.  7.  290. 

must  be  specific  and  seasonably  made  in  trial  court  in  criminal  cases,  293. 

to  mode  of  impaneling  jury  and  to  jurors,  341,  691,  77S. 

to  rulings  on  verdicts,  342. 

to  judgments,  344-346. 

to  judgments  or  decrees  mustgenerally  be  presented  in  trial  court,  345, 346. 

to  trial  where  issue  of  law  remains  undecided  may  be  waived,  352. 

what  are  waived  by  common  joinder,  406. 


index.  853 

[References  are  to  Sections.] 
OBJECTIONS— continued.  s, 

what  are  waived  by  submission,  426,  427. 
to  submission,  should  be  in  writing  and  verified,  436. 
should  be  specifically  stated  in  briefs,  445,  n.  2. 
should  be  presented  to  trial  court  in  order  to  be  available  on  appeal,  470, 

674,  692. 
to  jurisdiction,  when  and  how  made,  470,  502,  776. 
to  complaint  may  be  first  made  on  appeal,  471-475. 
to  answer  can  not  be  first  made  on  appeal,  476,  4S0. 

to  cross-complaint  or  counter-claim  may  be  first  made  on  appeal, 477-478. 
to  reply  can  not  be  first  made  on  appeal,  479,  480. 
to  judgment  en  pleadings,  4S2. 
to  set-off  may  be  first  made  on  appeal,  4S3. 
in  cases  where  a  bad  answer  is  proved,  4S4-4S7. 
in  anomalous  cases,  487. 
in  criminal  cases,  4SS. 

to  juror  must  be  promptly  and  specifically  made,  613,  n.  2,  778. 
to  remedy  must  be  made  in  trial  court,  658,  679.  776. 
waived  in  trial  court  are  completely  lost,  674,  675. 
to  jurisdiction  of  person,  waiver  of,  677,  67S. 
to  pleadings,  how  waived,  680-682,  68S. 
to  ruling  on  demurrer,  waiver  of,  6S3. 
preliminary,  waiver  of,  6S4. 
that  suit  was  prematurely  brought  or  appeal  prematurely  taken,  waiver 

of,  684 
to  appeal  or  supersedeas  bonds,  waiver  of,  684. 
to  ruling  on  demurrer  to  evidence,  waiver  of,  6S6. 

to  competency  of  evidence,  are  waived  by  demurring  to  evidence,  689. 
to  mode  of  trial,  waiver  of,  690. 
to  competency  of  judge  or  jurors,  waiver  of,  691. 
definition  and  office  of,  distinguished  from  exceptions,  769. 
must  be  specific,  770. 

grounds  of,  must  be  stated  and  appear  in  record,  771,  775. 
must  be  seasonable,  772. 
must  come  from  the  proper  party,  773. 
joint  where  good  as  to  only  one  party  are  unavailing,  773. 
where  evidence  is  competent  against  only  one  of  several  parties,  774. 
to  pleadings  generally,  777. 
to  evidence,  779,  780. 

to  evidence  where  question  is  proper  but  answer  incompetent,  781. 
to  conduct  of  parties  or  counsel,  782. 

OFFERS, 

general  doctrine  of,  742. 

of  testimony  on  examination  in  chief,  742-746. 

where  objection  to  question  is  sustained,  743-746. 

should  not  mingle  competent  with  incompetent  evidence,  745. 


854  1N1)KX 

References  are  to  Sections.] 
OFF!  RS— «  ontinned. 

are  nol  required  on  cross-examination,  717. 
of  documentary  evidence,  71s. 
need  not  be  repeated,  749. 

OPEN    AM)  CLOSE, 

who  is  entitled  to,  671. 

when  error  in  refusing  is  prejudicial,  671. 

will  be  presumed  to  have  been  properly  directed  by  trial  court,  721;. 

OPINIONS, 

Supreme  Court  not  required  to  give  to  legislature,  4. 

Supreme  Court  must  write.  46. 

what  questions  must  be  considered,  46. 

ORAL   ARGUMENT, 

importance  of,  453. 
application  for,  454. 

limitation  of,  455. 
statement  of  points  Tor,  456. 
interchange  of  points  tor,  457. 

ORDER  OF  DOCKETING   AND   HEARING  APPEALS, 

appeals  are   docketed  in  order  of  filing,  458. 

exceptions,  459. 

cause  can  not  be  docketed  until  transcript  is  filed,  460. 

causes  are  heard  in  order  in  which  they  are  docketed,  461. 

court  may  change  order  of  hearing,  462. 

advancement,  463,  404. 

application  for  advancement,  465. 

submission  is  necessary  before  application  for  advancement,  466. 

notice  of  application  to  advance,  467. 

hearing  on  motion  to  advance.   (.68. 

questions  for  decision  on  motion  to  advance,  469. 

ORDERS, 

appeal  will  not  generally  lie  from  interlocutory,  80-81. 
wha    an-  interlocutory,  So-84. 
when  appeal  will  lie  from,  100-107. 

effeel  of  appeal  from,  10S. 

mode  of  appealing  from.  109,  268. 

in  matters  connected  with  decedents'  estates,  229. 

arresting  judgment,  State  may  appeal  from,  272.  273. 

stay  upon  appeals  from. 

appeal  from  does  not  completely  oust  jurisdiction  of  trial  court,  542. 


INDEX.  855 

\Rcferenccs  are  to  Sectio?is.] 

P 

PARTIES, 

under  disabilities,  when  they  may  appeal,  130. 

who  maj'  appeal,  131,  132,  147. 

appealable  interest,  133-135,  160. 

exceptional  cases,  136. 

right  of  successor  to  appeal,  substitution,  137. 

joint  parties,  138. 

co-parties,  139. 

necessary  parties,  140,  160. 

parties  to  record  but  not  to  judgment  not  always  necessary  parties,  141. 

persons  not  affected  by  appeal  are  not  necessary  parties,  142. 

notice  to,  143-145. 

waiver  of  notice,  146,  150-152. 

successful  party  can  not  appeal,  147. 

appellees,  who  should  be,  153,  154. 

united  in  interest,  155. 

how  co-parties  may  become  adversaries,  156. 

effect  of  change  of  interest,  157,  158. 

relation  in  trial  court  generally  continues  on  appeal,  159. 

appealable  interest,  how  shown,  160. 

change  of  position  of  parties,  effect  of,  161. 

time  within  which  parties  must  be  brought  in,  162. 

co-parties  who  refuse  to  join,  effect  of  appeal  upon,  163. 

notice  to  one  who  is  a  party  but  not  a  co-party,  effect  of,  164. 

death  of  party  before  appeal,  effect  of,  165. 

death  of  party  after  appeal,  effect  of,  166,  169. 

death  of  one  of  several  appellants,  effect  of,  167. 

legal  representatives  and  privies,  16S. 

who  may  assign  error,  311-315,  31S-321. 

must  generally  be  named  in  assignment  of  errors,  322,  323. 

to  motion  to  dismiss  appeal,  531. 

to  the  action,  difference  between  necessary  and  proper,  659,  660. 

who  are  necessary  parties  to  an  action,  659-661. 

criterion  for  determining  who  are  necessary,  661. 

who  should  be  plaintiffs,  662. 

who  should  be  defendants,  662. 

joinder  of,  663. 

right  of  action  must  exist  in  all  who  join  as  plaintiffs,  663. 

PARTITION, 

appellate  jurisdiction  is  in  Supreme  Court,  44. 

PAYMENT. 

of  judgment  by  defendant  will  not  estop  him  from  appealing,  152. 
form  of  motion  to  dismiss  appeal  on  ground  that  appellant  had  accepted 
payment  of  judgment,  8S1. 


856  [NDEX- 

A',  ferences  are  to  Sections.] 
PERSONAL    PROPERTY, 

Appellate  Court  has  jurisdiction  of  appeals  in  actions  for,  65. 
value  is  immaterial,  66. 

PERSONAL    REPRESENTATIVES, 

may  appeal  where  party  dies,  133,  137. 

substitution  of,  137. 

when  they  should  unite  with  heirs  in  appeal,  16S. 

common  joinder  admits  representative  character  of  appellant.  40S- 

PETITION, 

for  leave  to  appeal  after  expiration  of  time  limited,  116,  264. 

to  advance  ease  for  hearing  on  appeal,  465. 

for  aid  in  perfecting  appeal,  509. 

for  injunction  on  appeal,  513. 

for  mandamus,  5  17. 

for  rehearing,  550-561,  5S6. 

form  of  petition  for  leave  to  amend  assignment  of  errors,  SS4. 

form  of  petition  for  certiorari,  SS6. 

form  of  petition  for  change  of  record,  nunc  pro  tunc,  8S7. 

form  of  petition  to  advance.  SSS,  SS9. 

form  of  petition  for  rehearing,  S93. 

PLEADINGS, 

are  part  of  record,  190-191,  202. 

amended  and  substituted  pleadings,  190,  595,  596. 

effect  of  failure  to  obey  rule  to  plead,  335. 

rulings  on  generally,  assignment  of  errors  as  to,  336. 

rulings  on  demurrer,  assignment  of  errors,  337. 

interrogatories  to  parties  are,  338. 

can  not  ordinarily  he  attaeked  for  first  time  on  appeal,  480,481. 

judgment  on,  should  he  asked  in  trial  court  and  not  first  on  appeal,  4S2. 

parties  are  held  on  appeal  to  theory  outlined  by,  494. 

can  not  be  amended  after  case   is   remanded  with  directions  to  reassess 

damages,  576,  n.  3. 
substitution  of,  596. 

Stituted  may  he  brought  into  record  by  certiorari ,  596. 
on  which  error  is  alleged  must  be  in  the  record,  596. 
struck  out  on   motion    must  be  brought  into  record   by  bill  of  exceptions, 

n.  3,  S16. 
time  for  filing  is  in  discretion  of  trial  court,  606. 
amendment  of  is  largely  in  discretion  of  trial  court,  607-611. 
may  be   amended   alter  verdict   to  prevent  a  variance  but  not  to  remedy  a 

failure  of  proof,  ''to.  '.11. 
party  can  not  complain  that  his  own  are  defective,  627. 
admission  of  a    tact  in  warrants   assumption  that  evidence  thereof  is  un- 

sary,  627. 
parties  are  held  to  construction  which  they  give  the  pleadings,  630. 


INDEX.  857 

[References  are  to  Sections.] 
PLEADINGS— continued. 

when  erroneous  rulings  on  motions  to  strike  out  or  reject  are  harmless,  639. 

defective  merely  in  form  will  be  deemed  amended  on  appeal,  640. 

motion  to  make  more  specific,  when  it  is  prejudicial  error  to  overrule,  665. 

error  in  overruling  demurrer  to,  is  prejudicial,  666,  669. 

when  error  in  sustaining  demurrer  to  one  of  several  paragraphs  is  not 
prejudicial,  669. 

waiver  of  objections  to,  by  failing  to  make  the  proper  motion,  6S0. 

waiver  of  objections  to,  by  failing  to  demurrer  or  demand  ruling  on  de- 
murrer, 6S1,  682. 

answering  complaint  or  amending  pleading  after  ruling  on  demurrer  op- 
erates as  a  waiver,  6S3. 

waiver  of  objections  by  demurring  to  evidence,  688. 

error  in  ruling  on,  may  be  cured  by  decree  or  special  verdict  or  finding,. 
697,  n.  1. 

presumption  that  judgment  is  founded  on  proper,  719. 

presumption  that  rulings  on  were  correct,  720. 

objections  to,  777. 

rulings  on  are  not  assignable  as  causes  for  new  trial,  S46. 

PLEADINGS  OF  THE  APPELLEE, 

demurrer  to  assignment  of  errors,  401,  402. 

plea  for  answer,  403. 

joinder  in  error,  404. 

common  joinder  admits  the  record,  405. 

waiver  by  common  joinder,  406. 

special  plea  or  answer,  407. 

what  must  be  specially  pleaded,  40S. 

matters  in  bar  may  be  shown  either  by  plea  or  motion,  409. 

motion  presenting  matters  in  bar,  410. 

verification  of  motion,  411. 

notice  of  plea  or  motion,  412. 

demurrer  to  special  plea,  413. 

reply  to  special  plea,  414. 

assignment  of  cross-errors,  415-421. 

notice  of  assignment  of  cross-errors,  when  not  required,  422. 

time  within  which  cross-errors  must  be  assigned,  423. 

answer  to  assignment  of  cross-errors  not  required,  424. 

POINTS    FOR    ORAL    ARGUMENT, 

what  is  a  "  point,"  444. 

must  be  stated  in  writing,  456. 

interchange  of,  457. 

PRAECIPE, 

direction  to  clerk  as  to  what  shall  be  included  in  record,  200. 
is  liberally  construed,  200. 
form  of,  873. 


858 


[NDEX. 


[References  are  to  Set  t  r' 

PREJl   DICIAL    ERROR, 

record  must  show,  592,  632. 

entire  record  must  be  examined  to  determine  whether  error  is  prejudicial, 

653- 
when  it  exists,  65  \. 

in  mistaking  the  remedy,  654,  655,  658. 
in  election  of  remedies,  656. 
in  seeking  an  extraordinary  remedy  where  only  an  ordinary  remedy  is 

proper,  657. 
how  error  in  mistaking  remedy  is  made  available,  65S. 
in  tailing  to  bring  in  necessary  parties,  659-662. 
in  joinder  of  parties,  663,  664. 

in  overruling  motion  to  make  a  pleading  more  specific,  665. 
in  rulings  on  demurrer,  666-669. 
in  admitting  and  excluding  evidence,  670. 
in  rulings  regarding  the  right  to  open  and  close  the  case,  671. 
misconduct  of  counsel  in  argument,  671,  672. 
improper  remarks  of  the  judge,  671. 

giving  instructions  in  jury-room  in  absence  of  parties  and  counsel,  671. 
permitting  to  take  instruments  of  evidence  to  jury -room,  671. 
permitting  jury  to  communicate  with  parties  and  third  persons,  671. 
allowing  officer  to  remain  in  jury-room  during  consultation,  671. 
misconduct  of  parties  and  counsel,  672. 
in  refusing  to  submit  interrogatories  to  jury.  673. 
in  withdrawing  interrogatories,  673. 

PRESENTING    A.N    OPPORTUNITY    FOR    REVIEW, 

theoretically  all  questions  should  be  presented  to  trial  court  for  review,  S27. 
practically  rulings  connected  with  trial  must  be  presented  to  trial  court  for 

review,  828. 
mode    of,  829. 

motion  for  new  trial  the  ordinary  means  of,  S29,  830. 
rules  governing  motion  for  new  trial,  832-859. 
See  New  Trial. 
PRESUMPTIONS, 

that  jurisdiction  exists,   12,  501,  n.  2,  502,  715. 

in  criminal  cases,  291. 

that  court  will  adhere  to  theory  indicated  by  riding,  590,  591. 

of  prejudice  from  erroneous  ruling,  594. 

that  trial  court  properly  exercised  its  discretionary  power,  604,  606. 

that   where  challenge  to  juror  was  sustained  the  juror  was  disqualified, 

7-.v 
presumption  which  upholds  the  proceedings  will   be  preferred  on  appeal, 

7'"/.  71-. 
all  reasonable  presumptions  will  he  indulged  in  favor  of  the  trial  court 

rulings,  7  10. 
presumption   in  favor  of  trial  court  is  not  conclusive.  711. 


INDEX.  859 

[References  are  to  Scctions.\ 
PRESUMPTIONS— continued. 

will  not  prevail  against  the  record,  713. 

that  judge  was  competent  and  court  duly  organized,  714. 

that  the  court  had  jurisdiction  of  subject,  715,  716. 

presumption  of  jurisdiction  does  not  exist  in  case  of  default  where  there 

is  no  appearance  or  service  of  process,  716. 
of  jurisdiction  not  rebutted  by  silence  of  record,  717. 
that  judgment  is  properly  supported,  718,  725. 

that  judgment  is  within  the  issues  and  founded  on  the  pleadings,  719. 
that  rulings  on  pleadings  were  correct,  720. 
that  rulings  on  evidence  were  correct,  721. 
that  court  gave  proper  instructions,  722. 

that  jurors  were  properly  summoned,  impaneled  and  sworn.  723. 
that  the  court  allowed  the  number  of  peremptory  challenges  given  by  law, 

723- 

in  aid  of  the  verdict,  724. 

that  costs  were  properly  taxed,  725. 

that  case  was  rightly  taken  up  and  tried  out  of  its  order,  725. 

that  case  sent  from  one  court  to  another  properly  reached  the  latter,  725. 

that  change  of  venue  was  waived,  725. 

that  accused  present  when  trial  opened  was  present  throughout.  725. 

that  judgment  was  pronounced  in  open  court,  725. 

that  modification  of  judgment  was  properly  made  at  proper  time,  725. 

that  judgment  by  default  was  entered  in  open  court  in  due  form,  725. 

that  bond  was  duly  approved,  725. 

that  instructions  were  in  writing,  725. 

that  motion  to  set  aside  service  was  properly  sustained.  725. 

that  order  of  dismissal  was  vacated  and  cause  reinstated,  725. 

that  court  gave  proper  directions  as  to  open  and  close,  725. 

that  admissions  sustain  the  judgment,  725. 

that  specific  findings  were  duly  made,  725. 

that  court  properly  restrained  counsel  in  argument,  725. 

that  orders  as  to  continuance,  change  of  venue  or  new  trial  were  right- 
fully entered,  725. 

that  the  rules  of  court  were  rightfully  adopted,  725. 

PROCESS, 

meaning  of  term,  170,  n.  1. 

object  of,  170. 

test  of  sufficiency,  171. 

difference  between  direct  and  collateral  attack  upon,  171. 

must  be  written,  172. 

is  essential  to  jurisdiction,  173. 

may  be  by  publication  when  authorized  by  legislature.  173,  1S3. 

time  of,  174. 

not  given  in  time,  waiver,  175. 

upon  whom  it  must  be  served.  176. 


INDEX. 

[References  are  to  Sections.} 
PR<  \CESS— continued. 

service  on  attorney  of  record,  177. 

service  on  one  of  several  attorneys,  178. 

proof  of  service,  179. 

notice  and  proof  of  service  must  he  filed,  180. 

service  on  co-parties,  1S1. 

objections  to,  when  and  how  made,  1S2,  32S,  329. 

constructive  notice,  1S3. 

by  publication,  statute  must  be  followed,  183. 

proof  of  publication,  1S4. 

amendment  ot"  proof,  185. 

in  case  of  default,  329,  330. 

distinction  between  cases  where  there  is  no  process  or  service  *nd  cases 

where  it  is  detective,  331—333. 
when  it  may  be  first  attacked  on  appeal,  332. 
writ  running  beyond  term  is  void  and  objection  may  be  first  made  on  ap- 

peai,  :,r,. 

PROHIBITION, 

appellate  jurisdiction  is  in  Supreme  Court,  44. 
will  not  take  place  of  appeal  or  writ  of  error,  518. 
when  it  will  issue,  518. 

PROSECUTIONS, 

tor  felony,  Supreme  Court  has  jurisdiction  over  appeals  from,  41. 

tor  misdemeanors,  appellate  court  has  jurisdiction  over  appeals  from,  41. 

PUBLICATION, 

notice  by,  173,  183. 
proof  of,  1S4. 
amendment  of  proof,  1S5. 

a 

QUESTIONS  FIRST   MADE  ON    APPEAL, 

objections  not  presented  to  trial  court  are  generally  not  considered  on  ap- 
peal,  170. 
objections  to  jurisdiction  may  be  made  at  any  time,  470. 
questions  as  to  sufficiency  of  complaint,  171-475. 

one  good  paragraph  will  save  complaint  first  attacked  on  appeal,  474. 
answer  can  not  be  attacked  for  firsl  time  on  appeal,  476,  4S0,  4S1. 

up!, lint  or  counterclaim  may  be  first  attacked  on  appeal,  477,  47S. 
reply  can  not  be  first  questioned  on  appeal,  479,  4S0,  4S1. 
judgmenl  on  pleadings  can  not  be  hist  asked  on  appeal,  4S2. 

off  may  be  firsl  assailed  on  appeal,  4S3. 
when    evidence  merely  proves  a  bad  answer,  judgment  may  be  reversed 

although  answer  was  not  questioned  in  trial  court.  1^5-486. 
anomalous  cases,  1.87, 

inal  cas,s.  where  indictment  may  be  first  assailed  on  appeal,  4SS. 


INDEX.  861 

[References  are  to  Sec/ions.] 
C^JESTIONS  OF  FACT, 

can  not  be  taken  up  by  State  on  appeal  in  criminal  cases,  274. 
are  not  presented  by  assignment  of  errors,  301. 

QUESTIONS  OF  LAW, 

are  presented  by  State  on  appeal,  274. 
how  they  may  arise,  279. 
are  presented  by  assignment  of  errors,  301. 
questions  as  to  discretionary  power  of  trial  court,  600. 
estoppel  of  party  to  deny  that  questions  are,  627,  630. 
submitting  to  jury  may  be  harmless  where  right  result  is  reached,  633. 
See  Reserved  Questions  of  Law. 

QUO  WARRANTO, 

appellate  jurisdiction  is  in  Supreme  Court,  44. 
when  the  proper  remedy,  657. 


R 

RECEIVER, 

appeal  lies  from  judgment  allowing  claim  against,  99. 

appeal  lies  from  order  authorizing  him  to  borrow  money.  99. 

appeal  lies  from  order  appointing,  100. 

may  appeal  as  successor,  137. 

when  trial  court  can  control  his  conduct  after  appeal.  545. 

RECORD    AND   TRANSCRIPT, 

appeals  are  tried  by,  1S6. 
record  imports  absolute  verity,  1S6. 

can  not  be  contradicted  by  officer's  certificate,  1S6,  n.  7. 
can  not  be  made  by  agreement,  1S7. 

defects  in  transcript  may  be  remedied  by  agreement,  iSS. 
difference  between,  1S9. 

record  may  be  amended  by  nunc  fro  time  entry,  1-90,  209-215. 
what  are  parts  of  record  proper,  190,  202. 

pleadings  and  direct  motions  are  part  of  record,  190,  191,  202, 
collateral  motions  are  not  part  of  record  proper,  190,  191. 
affidavits  are  not  part  of  record,  190. 
substituted  pleadings,  when  part  of  record,  190. 

special  order  of  court  or  bill  of  exceptions  necessary  to  add  extrinsic  mat- 
ters to  record,  192. 
special  cases,  193. 
in  case  of  default,  193. 
questions  on  instructions,  193. 

record  on  appeal  distinguished  from  trial  court  record,  194.  205. 
requisites  of  transcript,  195. 
what  transcript  should  contain,  196,  19S. 


I\  DEX. 


',  rentes  are  to  Sections.] 
RECORD   AND  TRANSCRIPT— continued. 

independent  cases  can  not  be  included  in  one  transcript,  197. 

transcript  should  include  so  much  of  record  as  is  embraced  in  appeal,  198. 

appellant  mav  direct  what  shall  be  included  in  transcript.  19S,  200. 

practice  where  transcript  contains  improper  matter,  199. 

praecipe  should  direct  what  transcript  shall  include,  200. 

where  transcript  is  defective  court  may  affirm  judgment  or  dismiss  ap- 
peal. 200.  n.  3. 

authentication  of  transcript,  201. 

authority  of  appellate  tribunal  over  transcript,  203. 

marginal  notes  must  be  made  by  appellant,  204. 

amendment  and  correction  of  trial  court  record,  206-215. 

effect  of  amendment  of  trial  court  record,  207. 

amendment  not  allowed  after  decision  on  appeal.  208. 

nunc  pro  tunc  entries,  when  and  how  made  and  obtained,  209-215. 

certiorari,  2 1^222,  2S1. 

in  agreed  case.  232. 

record  in  criminal  cases,  preparation  of,  275. 

what  record  in  criminal  case  must  show,  280,  292,  294. 

correction  of  record  in  criminal  case  by  certiorari.  281. 

when  leave  to  amend  may  precede  assignment  of  error,  302. 

common  joinder  admits  the  record,  405. 

in  case  of  assignment  of  cross-errors,  421. 

mandamus  will  lie  to  compel  signing  and  certification  of,  516. 

trial  court  mav  amend  after  appeal,  54S. 

trial  court  can  not  make  entirely  new  record  after  appeal,  549. 

rehearing  will  not  be  granted  to  enable  parties  to  secure  correction  of,  556. 

must  show  error,  592,632. 

where  susceptible  of  two  constructions  that  which  sustains  judgment  will 
be  preferred,  712. 

presumptions  will  not  prevail  against,  713. 

silence  or  incompleteness  of  does  not  rebut  presumption  of  jurisdiction,  717. 

must  -how  specific  grounds  of  objection,  771. 

REHEARING, 

statutory  provisions  concerning,  550. 

petition  must  Ik-  tiled  in  time,  550. 

effect  of  tiling  petition  for,  551. 

case  remains  in  appellate  tribunal  undisposed  of  until  petition  is  acted  on, 

]. utation  of  time  for  filing  petition.  552. 
all  necessary  acts  must  be  done  within  time  fixed,  553. 
who  may  petition  for,  554. 
office  of  the  petition,  555. 
will    not   he  -ranted   to  enable    parties   to  secure  correction  of  record  or 

transcript,  550. 
new  questions  can  not  be  presented  in  petition  for,  557. 


INDEX.  863 

{References  are  to  Sections.] 
REHEARING— continued. 

second  petition  will  not  be  entertained,  558. 
submitting  the  petition,  559. 
ruling  on  petition,  560. 
effect  of  granting,  561. 
form  ot  petition  for,  793. 

REINSTATEMENT    OF    APPEAL, 

appellate  tribunal  may  order,  537. 

party  asking  must  show  good  cause,  538. 

motion  for,  539,  540. 

notice  of  motion  for,  539. 

practice  on  hearing  of  motion,  540. 

form  of  motion  for,  892. 

RELEASE, 

will  estop  party  from  prosecuting  appeal,  150. 

of  sureties,  3S1,  382. 

of  errors  must  be  specially  pleaded,  408. 

REMEDY, 

election  of,  149,  496,  656-658. 

mistaking,  655. 

consequences  of  mistaking,  658. 

how  error  in  mistaking  is  made  available.  658. 

objections  to,  may  be  waived,  679. 

REMITTITUR, 

effect  on  question  of  jurisdiction,  62. 

appellate  tribunal  may  direct,  570-572. 

may  be  voluntarily  entered,  570,  n.  4. 

affirmance  is  generally  at  cost  of  party  who  enters  the  remittitur,  573. 

REPLY, 

to  special  plea,  414. 

can  not  be  attacked  for  first  time  on  appeal,  479-4S1. 

REPRESENTATIVES, 

See  Personal  Representatives. 

REQUESTS  AND  OFFERS, 

request  is  generally  necessary  to  make  failure  to  rule  error,  726,  727. 
implied  request,  72S. 

time  within  which  request  must  be  made,  729. 
party  must  make  his  own  request,  730. 

where  request  has  been  granted  adverse  party  may  insist  that  it  be  ad- 
hered to,  73a 
where  request  is  necessary  the  record  must  show  it  was  duly  made,  731. 
request  for  special  rinding,  732. 
request  tor  written  kist.-uctions,  733. 


Mil 


INDEX. 


[References  are  to  Sections.] 
REQUESTS  AND  OFFERS— continued. 

request  to  inspect  instructions,  734. 

request  for  special  instructions,  735. 

request  where  instructions  are  correct  as  far  as  they  go,  736. 

reque-t  to  submit  interrogatories  to  jury,  737. 

request  for  special  verdict,  738,  739. 

request  tor  production  and  inspection  of  documents,  740,  741. 

offers,  when  and  why  required,  742. 

offer  of  evidence  showing  what  party  expects  to  prove  is  necessary  on  ex- 
amination in  chief  after  ruling  excluding  it,  743. 

where  offer  of  evidence  is  made  it  must  be  ihown  to  be  material  and  rele- 
vant, 744. 

offer  of  evidence  part  of  which  is  competent  and  part  incompetent  may 
be  rejected,  745. 

offer  of  evidence  is  not  good  unless  a  question  is  asked  calling  for  it,  746. 

offer  of  evidence  is  not  required  on  cross-examination,  747. 

offer  of  documentary  evidence,  748. 

repeating  offers,  749. 

RESERVED  QUESTIONS  OF  LAW, 
object  of  statute  providing  for,  233. 
what  evidence  is  necessary  in  record,  233,  n.  2. 
case  must  be  made  up  under  statute,  234. 

notice  of  intention  to  reserve  questions  must  be  given  to  court,  235. 
when  and  how  notice  must  be  given,  235,  and  notes, 
only  questions  of  law  can  be  reserved,  236,  238. 
on  what  rulings  questions  can  be  reserved,  237. 
exception  to  ruling  is  necessary,  239. 

bill  of  exceptions,  when  necessary  and  what  it  must  contain,  240,  241. 
office  of  bill  of  exceptions,  241. 
final  judgment  is  necessary  before  appeal,  243. 
appeal  does  not  stay  proceedings,  244. 

supersedeas  can  be  ordered  only  by  appellate  tribunal,  244. 
form  of  bill  of  exceptions,  862. 

RESTITUTION, 

when  it  must  be  made,  5S3. 
order  of,  how  obtained,  584. 

REVERSAL  OF  JUDGMENT, 

form  and  effect  of,  generally,  580. 

costs  in  581. 

effect  on  bona  fide  purchasers,  582. 

when  restitution  will  be  directed,  5S3,  584. 

!■  1    \   ll.W, 

appellate  jurisdiction  is  one  of,  17. 

statutory  mode  must  be  pursued,  19. 


INDEX.  865 

[References  arc  to  Sections.] 
REVIEW — continued. 

suit  for  cuts  oft*  appeal,  149,  530. 

suit  for  may  in  some  cases  be  prosecuted  after  unsuccessful  appeal.  530. 
suit  for,  will  generally  lie  only  where  there  are  proper  objections  and  ex- 
ceptions, 769,  n.  2. 
rulings  connected  with  trial  must  be  brought  before  trial  court  for, 827,828. 
mode  of  presenting  questions  for,  S29. 
by  motion  for  new  trial,  832-S59. 

See  New  Trial. 
RULES, 

power  of  court  to  make,  7,  616. 

of  Supreme  Court  govern  Appellate  Court,  71. 

presumption  that  they  were  rightfully  adopted  and  properly  promulgated, 

725- 
must  be  brought  into  record  by  bill  of  exceptions,  S17,  n.  1  on  p.  769. 

S 
SET-OFF, 

may  be  attacked  for  first  time  on  appeal,  4S3. 

SEVERANCE, 

effect  of,  as  to  parties  on  appeal,  157,  15S. 

SERVICE, 

on  attorney  of  record,  177,  17S. 

proof  of,  179. 

filing  of  notice  and  proof,  180. 

on  co-parties,  1S1. 

objections  to,  how  made,  1S2. 

bv  publication,  1S3. 

proof  of  publication,  1S4. 

amendment  of  proof,  185. 

presumption  as  to  ruling  on  motion  to  set  aside.  725. 

SPECIAL    FINDING, 

express  request  is  necessary  to  secure,  732. 

when  request  for  must  be  made,  732. 

request  for  must  be  shown  by  record,  732. 

request  for,  may  appear  in  finding  itself.  732 

characteristics  and  incidents  of,  757. 

when  questions  on  can  be  raised  by  motion  for  venire  de  novo,  758-763. 

motion  to  strike  out,  764,  765. 

wholly  outside  the  issues,  motion  for  judgment  and  exception  to  conclu- 
sions of  law,  767. 

where  judgment  does  not  follow  it,  motion  to  correct  or  modify  judgment 
will  lie.  76S. 

motion  for  new  trial  questions  its  correctness,  when,  793,  854 

55 


[NDEX. 

/,\  f,  >■,  tic,  5  are  to  Sections.) 
CIAL    INTERROGATORIES, 
motion  for  judgment  on,  327,  si;. 
when  refusal  to  submit  is  harmless,  651,  673. 

when  immaterial  are  submitted  the  error  is  generally  harmless,  651. 
when  answers  must  be  returned  to,  673. 
when  jury  can  answer  that  there  is  no  evidence,  673. 
when  they  may  be  withdrawn,  673. 
motion  to  recommit  for  more  specific  answers,  691. 

can  not  generally  be  withdrawn  over  objection,  although  submitted  at  re- 
quest of  adverse  party.  730. 
must  be  expressly  requested,  737. 
motion  for  judgment  on,  752. 
inconsistency  between  answers  and  general  verdict,  how  taken  advantage 

of,  847. 

error  of  court  in  refusing  may  be  presented  by  motion  for  new  trial,  847. 

SPECIAL  JUDGE. 

presumption  as  to  regularity  of  his  appointment  and  as  to  his  authority, 

714. 
his  authority  continues  until  case  is  disposed  of,  714,  n.  5 
when  bill  of  exceptions  should  be  signed  by,  799. 

SPECIAL    VERDICT, 

general  instructions  need  not  be  given  in  case  of,  and  if  given  are  generally 

harmless,  645. 
righl  to,  73S. 
request  for,  73S. 

practice,  where  it  is  requested,  739. 
motion  for  judgment  on,  753,  756. 

STATE, 

from  what  it  may  appeal  in  criminal  cases,  269-274. 
has  no  general  right  of  appeal  in  criminal  cases,  278. 
how  it  may  appeal,  275-285. 
effect  of  appeal  by,  298. 

STATUTORY    PENALTIES, 

actions  to  recover,  appellate  jurisdiction  over.  42 
STAY    OF   PROCEEDINGS, 

appeal  does  not  necessarily  stay  proceedings,  384. 

al  in  term  generally  operates  as  a  stay,  3S5. 
bond  and  order  of  appellate  tribunal  is  necessary  when  appeal  is  not  per- 
fected in  term,  374,  3S6. 
supersedeas,  3S7. 
application  for  sir,  ■  }88. 

effect  of  supersedeas  generally,  3S9.  541. 

.   obtained  by  one  of  several  appellants.  390. 
supersedeas  does  not  give  right  to  do  what  decree  forbids,  391. 


INDEX.  867 

[References  are  to  Sections.] 
STAY   OF  PROCEEDINGS— continued. 

effect  of  supersedeas  upon  self-executing  judgments,  39:,  393. 

duration  of,  394,  395. 

when  and  how  set  aside,  399,  400. 

STENOGRAPHER'S    REPORT, 

cost  of  is  part  of  costs  of  suit,  5S1,  n.  3. 

how  made  part  of  bill  of  exceptions,  798,  821,  822 

SUBMISSION, 

by  agreement,  waives  irregularities  in  notice,  146,  426. 

by  agreement,  waives  pending  motion  to  dismiss  appeal,  146, 

no  particular  form  is  required  in  case  of  such  submission,  but  it  should  be 

in  writing,  425. 
what  it  waives  generally,  426. 
what  it  does  not  waive,  427. 
forced  submission,  428. 
on  call,  429. 

importance  and  effect  of.  430. 
of  appeals  in  term,  431. 
notice  of,  432,  435. 
under  the  act  of  1885,  433,  435. 
upon  application  of  appellee,  434. 
objecting  to,  436. 
setting  aside,  437. 

SUBROGATION, 

right  of  sureties  to,  382. 
SUBSTITUTION, 

of  personal  representatives  and  heirs,  137. 

of  pleadings,  596. 

SUCCESSORS  IN  INTEREST, 
may  appeal,  133,  137. 

SUMMONS, 

See  Process. 

SUNDAY, 

not  a  judicial  day,  127. 

when  counted  in  determining  time  for  appeal,  127, 

SUPERSEDEAS, 

in  case  of  reserved  questions  of  law,  243. 

bond  is  generally  required,  374,  3S6. 

definition,  3S7. 

application  for,  3SS. 

effect  of  generally,  3S9,  541. 

in  favor  of  one  of  several  appellants.  390. 


INDEX. 

n  nces  tin-  to  Sections.] 
SUPERSEDEAS—  continued. 

does  not  give  right  to  do  what  decree  forbids,  391. 
effect  on  self-executing  judgments,  392,  393. 
right  and  liabilities  of  sureties  on  bond,  396,  397. 
can  not  be  controlled  by  trial  court,  39S. 
when  and  how  it  may  be  set  aside,  399,  400. 

SUPREME  COURT, 

is  the  highest  constitutional  court,  2,  25. 

extent  of  legislative  power  over,  2. 

not  required  to  give  opinions  to  legislature,  4. 

can  not  be  turned  into  a  nisi  prius  court,  27. 

mode  of  procedure  in,  2S. 

no  right  to  jury,  29,  30. 

territorial  jurisdiction  of,  31. 

has  exclusive  appellate  jurisdiction  over  constitutional  questions.  32. 

statutory  jurisdiction  of,  34. 

cases  over  which  it  has  no  jurisdiction,  35-36. 

equity  cases,  jurisdiction  over,  37,  3S. 

foreclosure  cases,  jurisdiction  over,  39. 

cases  involving  title  to  land,  jurisdiction  over,  40. 

prosecutions  for  felony,  jurisdiction  over,  41. 

habeas  corpus,  jurisdiction  over.  41. 

actions    to   recover  statutory  penalties,  when  jurisdiction   is   in    Supreme 

Court,  42. 
municipal  ordinances,  when   Supreme  Court  has  jurisdiction  over  cases 

involving,  43. 
other  cases  over  which  it  has  jurisdiction,  44. 
inherent  powers  of,  45. 
opinions,  40. 
decisions  govern   Appellate  Court,  72. 

SURETIES, 

on  appeal  bond,  authority  of  trial  court  to  approve,  366. 

are  generally  estopped  by  recitals  in  bond,  36S. 

are  concluded  by  judgments  against  principal  affirmed  on  appeal,  36S. 

are  not  concluded  by  recital  in  bill  of  exceptions  that  they  executed  the 

bond.  368,  n.  3. 
are  not  released  by  irregularity  in  approval  of  bond,  370. 
what  will  release,  381,  382. 
righl  jation,  3S2. 

1  y  against,  3S3 
on  supersedeas  bond,  rights  and  liabilities  of,  396,  397. 

SURPRISE, 

as  cause  for  new  trial,  852. 


INDEX.  869 

[References  are  to  Sections.} 

T 

THEORY  OF  THE  CASE, 

parties  on  appeal  must  abide  by  theory  adopted  by  them  in  trial  court,  481, 

489,  490. 
illustrative  cases,  491,  492,  627,  630. 
where  constitutional  questions  are  involved,  493. 
as  outlined  by  the  pleadings,  494,  655. 
as  shown  in  the  opening  statement,  495. 
doctrine  of  election,  496. 
limitations  of  the  rule,  497. 
exceptions  to  the  rule,  498. 

as  affecting  questions  of  jurisdiction,  499,  501-503. 
special  cases,  500. 

ruling  asserting  wrong  theory  is  erroneous,  591. 
effect  upon  question  of  right  to  jury  trial,  612. 

TIME    FOR   TAKING    APPEAL, 

limitation  as  to  time  is  jurisdictional,  in. 

time  can  not,  ordinarily,  be  extended  by  court,  112. 

may  be  extended  in  matters  affecting  decedents'  estates,  112,  n.  I,  261-267. 

may  be  extended  in  case  of  fraud  or  accident,  112,  113. 

not  extended  to  party  in  fault,  114. 

diligence  required,  115. 

petition  for  leave  to  appeal  after  time,  116. 

may  be  extended  where  delay  is  caused  by  court,  117. 

when  time  begins  to  run,  11S-120. 

when  right  of  appeal  matures,  121. 

computation  of  time,  122-127. 

meaning  of  words  ''years"  and  "months,"  126. 

non-judicial  days,  when  counted,  127. 

appeal  must  be  perfected  in  time,  128. 

where  some  of  the  appellants  are  barred,  those  not  barred  may  appeal,  129. 

parties  under  disabilities   may  appeal  within  one  year  after  removal  of 

disabilities,  130. 
in  cases  involving  matters  connected  with  decedents'  estates,  261,  263-26S. 
in  criminal  cases,  284,  2S5. 
can  not  be  extended  by  agreement  in  criminal  cases,  284. 

TITLE,    SUITS   TO    QUIET, 

jurisdiction  is  in  Supreme  Court,  44. 

TITLE    TO    LAND, 

cases  involving  are  for  Supreme  Court,  40,  51,  52. 

TORT, 

waiver  of,  election  of  remedies,  656. 

how  error  in  assessment  of  damages  is  questioned  in  case  of.  855,  S56. 


}70  [NDEX. 

Rt  f(  re)  s         '/is.] 

rRANSCRIPT, 

detects  in  may  be  remedied  by  agreement,  iSS. 

distinguished  from  record,  1S9. 

requisites  of,  195. 

what  it  should  contain,  196,  19S. 

independent  cases  can  not  be  included,  197. 

appellant  may  direct  what  shall  be  included.  19S,  200. 

practice  where  it  contains  improper  matter,  199. 

where  detective  judgment  may  be  affirmed  or  appeal  dismissed,  200,  n.  3. 

authentication  of,  201. 

authority  of  appellate  tribunal  over,  203. 

.  204. 
certiorari  to  correct,  216—222,  2S1. 

must  be  filed  within  sixty  days  after  bond.  240.  247,  n.  2. 
in  case  of  appeal  after  term.  251. 

must  be  filed  within  thirty  days  in  case  of  appeals  in  decedents'  estate- 
matters,  259.  262. 
in  case  of  assignment  of  cross-errors,  421. 
must  be  filed  before  appeal  can  be  docketed  or  advanced,  460. 
when  appellate  tribunal  will  assist  party  before  transcript  is  filed,  507,  50S. 
mandamus  will  lie  to  compel  officer  to  certify,  516. 
when  it  may  be  withdrawn  after  dismissal  of  appeal,  536. 
rehearing  will  not  be  granted  to  enable  parties  to  secure  correction  of,  556. 

TRANSFER    OF    CASES, 

from  one  appellate  tribunal  to  the  other,  73. 
TRIAL. 

by  jury,  no  right  to  on  appeal,  29,  30. 

without  issue,  waiver,  352,  6S2. 

1  \    jury,  when  it  may  be  demanded,  612. 

by  jury,  waiver  of  right  to,  612,  6S5. 

mode  of,  discretionary  power  of  court,  615. 

conduct  of,  discretionary  power  of  court.  616. 

by  jury,  denial  of.  where  right  exists  is  prejudicial  error,  654. 

'net  of.  when  errors  are  prejudicial,  671. 
mode  of,  how  affected  by  doctrine  of  waiver,  690. 

TRIAL    COURT, 

appeal  generally  removes  case  entirely  from,  541,  543,  544. 

appeal  from   interlocutory  order  does    not  completely  oust  jurisdiction  of, 

542. 
independent  and  collateral  matters  not  taken  from  jurisdiction  of  trial 

court  by  appeal,  545. 
mav  amend  record  after  appeal.  548. 
can  not  make  entirely  new  record  after  appeal.  ^49. 
must  obey  mandate  of  appellate  tribunal.  570. 
must  enter  judgment  or  proceed  a-  directed  by  appellate  tribunal,  570.  577. 


INDEX.  871 

[References  ar,  to  Sections.] 
TRIAL  COURT— continued. 

is  bound  by  the  law  of  the  case,  578. 

its  authority  ends  when  case  is  removed  by  appeal  and  revives  only  when 

case  is  remanded,  579. 
discretionary  powers  of,  597-62  2. 

presumptions  in  favor  of  acts  and  proceedings  of,  709-7:;. 
duties  of  judge  in  regard  to  bill  of  exceptions,  79S,  799,  810. 
should  be  given  an  opportunity  to  review  its  rulings,  827,  82S. 
questions  for  review  are  generally  presented  to  it  by  motion  for  new  trial, 

S29.  S30. 

TRIAL   COURT    THEORIES, 

holding  parties  to,  4S9-503,  612,  627,  630. 

See  Theory  of  the  Case. 

V 

VACATION, 

of  judgment  not  caused  by  appeal,  297. 
of  supersedeas,  motion  for,  399,  400. 
of  supersedeas,  form  of  motion  for,  S90. 

VARIANCE, 

may  be  prevented  by  amendment  of  pleadings  after  verdict,  610,  611. 
immaterial,  may  be  disregarded,  610,  n.  2. 

VENIRE    DE    NOVO. 

motion  for  is  proper  to  direct  attention  to  defective  verdict,  327,  343. 

does  not  serve  purpose  of  motion  for  new  trial,  343. 

only  reaches  defects  apparent  on  face  of  record,  343. 

when  motion  for  will  lie,  75S-760. 

office  of  motion  for,  761. 

time  of  filing  motion  for,  762. 

requisites  of  motion  for,  763. 

motion  for  wilfnot  lie  where  facts  are  well  stated  in  special  finding,  764-766. 

VENUE, 

a  party  who  improperly  obtains  change  of,  can  not  avail  himself  of  the 

error,  627. 
error  in  refusing  change  may  be  cured  by  subsequently  granting  it,  70S. 
change  of,  although  granted  may  be  presumed  to  have  been  waived.  72;. 
presumption  that  order  as  to  change  was  proper,  72;. 
application  for  change  of,  affidavit,  rulings  and  exceptions  may  be  brought 

into  record  by  bill  of  exceptions.  Si  7. 
error  in  granting  or  refusing  change  is  cause  for  new  trial,  S48. 

VERDICT, 

defects  in  are  reached  by  motion  for  venire  de  novo.  327. 
construction  of,  342. 


g7*2  [NDEX. 

Reft  fences  arc  to  Sections.) 
\  ERDICT— continued. 

rulings  on,  objections  to,  342. 
specifications  of  error  as  to  rulings  on,  343. 
when  jury  may  be  discharged  before,  621. 

clearly  right  on  evidence  may  render  errors  in  instructions  harmless,  643. 
special,  when  general  instructions  are  harmless,  645. 
when  erroneous  rulings  upon  are  harmless,  652. 
presumptions  in  aid  of,  724. 
special,  request  for,  73S,  739. 
special,  motion  for  judgment  on,  753-756. 

contrary  to  law  or  not  sustained  by  sufficient  evidence,  cause  for  new  trial, 
s5-b 
VIEW, 

court  may  order  or  deny  in  its  discretion,  619. 


w 

WAIVER. 

of  notice,  145,  146,  286,  426. 

of  right  to  appeal,  150-152,  2S9. 

of  failure  to  give  notice  in  time,  175. 

of  failure  to  file  appeal  bond,  249,  376. 

of  failure  to  appeal  in  time,  2S5. 

of  errors  in  criminal  cases,  290. 

of  objections  by  going  to  trial  without  formation  of  issues,  352,  470,  482, 

682. 
of  approval  of  appeal  bond,  369,  370,  n.  3. 
by  common  joinder,  406. 
In   submission  by  agreement,  426,  427. 
by  tiling  brief,  448. 
of  motion  to  dismiss  appeal.  519. 

of  jury  trial  by  failing  to  appear  when  case  is  called,  612,  n.  3. 
of  jury  trial  by  request  to  submit  a  single  question  to  jury,  612. 
of  tort  by  action  c.x  contractu,  656. 
by  failing  to  question  remedy  in  trial  court,  65S,  679. 
of  objection  that  necessary  parties  are  not  before  the  court,  659,  n.  2. 
objections  waived  by  silence  or  inaction  are  lost,  674. 
what  is  necessary  to  prevent,  675. 
defects   or   irregularities  of  which  a  party   is  excusably  ignorant  are  not 

waii  ed,  671 1,  691. 
of  objections  to  jurisdiction  of  person  by  general  appearance.  677. 
of  objections  to  pleadings,  6S0,  688. 
by  failing  to  demur,  6S1. 

by  failing  to  demand  decision  on  demurrer.  682. 
of  objections  to  rulings  on  demurrer,  6S3. 
of  preliminary  objections,  6S4. 


INDEX. 

[References  are  to  Sec/ions.] 
W  A I V  E  R—  con  f  hi  tied. 

of  jury  trial  by  joinder  in  demurrer  to  evidence,  6S5. 

of  objection   to  ruling  on  demurrer  to  evidence  by  introducing  evidence 
thereafter,  6S6. 

of  motion  directing  jury  to  return   verdict  by  afterwards  introducing  evi- 
dence, 6S7. 

of  objections  to  pleadings  by  demurring  to  evidence,  6S8. 

of  objections  to  admissibility  of  evidence  by  demurring  to  the  evidence,  6S9. 

of  objections  to  mode  of  trial,  690. 

of  objections  to  judge  or  jurors,  691. 

of  objections  to  rulings  on  trial  bv  failure  to  except  and  present  oppor 
tunity  for  review,  692. 

WITHDRAWAL    OF    APPEARANCE, 

when  permitted,  generally,  677. 

mistake  may  be  cause  for  permitting,  678. 

WITNESSES, 

recall  of,  617. 

examination  of,  618,  743-749. 

separation  of,  618. 

number  of  may  be  limited,  618. 

WRIT. 

running  beyond  term  is  void,  and  may  be  first  attacked  on  appeal.  333 
of  mandate,  51 1-5 17,  79S. 
of  prohibition,  518. 

See  Injunction;  Process;  Certiorari. 

WRITTEN    INSTRUMENTS, 

notice  to  produce,  740. 

may  be  made  part  of  bill  of  exceptions  by  reference,  SiS. 


YEAR, 

meaning  of  term  in  statute,  126. 


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